GR L 4199; (November, 1951) (Digest)
G.R. No. L-4199 November 29, 1951
THE BORDEN COMPANY, petitioner, vs. DOCTORS PHARMACEUTICALS INC., and CELEDINO AGRAVA, Director of Patents, respondents.
FACTS
The petitioner, The Borden Company, filed a petition for certiorari under Rule 67 of the Rules of Court, praying that the respondent Director of Patents be directed to forward the record of Opposition No. 3, series of 1949, and that the Director’s decision of August 31, 1950, be vacated and set aside. In that decision, the Director of Patents overruled The Borden Company’s opposition to the registration by respondent Doctors Pharmaceuticals Inc. of the trademark “Hemo-Vim” for a drug in liquid form. The Borden Company’s opposition was based on its prior registration of the trademark “Hemo” for a vitamin and mineral fortified malted food drink in powder form. After the petition was filed and set for hearing, the petitioner, through its attorneys, filed a motion to withdraw the petition. The respondent Doctors Pharmaceuticals Inc. objected to the withdrawal unless the petitioner reimbursed it for attorney’s fees amounting to P1,500 and the dismissal was made with prejudice.
ISSUE
The issues are: (1) whether the dismissal of the petition should be with terms, specifically requiring the petitioner to reimburse the respondent for attorney’s fees; and (2) whether such dismissal should be with prejudice.
RULING
The Court dismissed the petition, with costs against the petitioner. On the first issue, the Court held that the respondent Doctors Pharmaceuticals Inc. is not entitled to recover attorney’s fees. The filing of the petition was not an act contemplated under Article 2208, paragraph 2, of the new Civil Code, as the respondent’s application for trademark registration was not caused by any act or omission of the petitioner. The litigation was a continuation of the trademark application process. The Court also cited Article 2208, paragraph 11, noting that the right to litigate must not be penalized. On the second issue, the Court declined to rule on whether the dismissal should be with prejudice, stating it was not in a position to express an opinion as it had not reviewed the merits of the Director of Patents’ decision. The Court noted that Section 25 of Republic Act No. 166 authorizes an action for cancellation of a registered trademark, and a competent court in such an action would be in a position to determine the effect of the dismissal.