Republic of the Philippines
DEPARTMENT OF JUSTICE
OFFICE OF THE PROVINCIAL PROSECUTOR
Lagawe, Ifugao
NESTOR ABBATUAN VALENCIA/ II-08-INQ-20K-624
CIDG RFU 14
Complainant/s, FOR:
VIOLATION OF R.A. 8293
-versus- SECTION 155 and 168
PERLITA T. ALVAREZ,
Respondent.
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COUNTER – AFFIDAVIT
I, PERLITA T. ALVAREZ, of legal age, Filipino citizen and a resident of
Alfonso Lista, Ifugao, after having been duly sworn to in accordance with law, depose
and state THAT:
1. I received a Subpoena from the Honorable Office requiring me to file my
counter-affidavit, attaching therein supporting documents and serving copies
thereof on the complainant to counter the charge of Violation of R.A. 8293,
Section 155 and 168 which I allegedly committed;
2. I am submitting this Counter – Affidavit to DENY, REBUT, and
CONTROVERT the false, malicious and fabricated allegations against me
stated in the complaint and that I am INNOCENT of the crime charged for the
following reasons:
a. Section 155 of R.A. No. 8293 identifies the acts constituting trademark
infringement as follows:
Section 155. Remedies; Infringement. – Any person who shall, without
the consent of the owner of the registered mark:
155.1 Use in commerce any reproduction, counterfeit, copy or colorable
imitation of a registered mark of the same container or a dominant
feature thereof in connection with the sale, offering for sale, distribution,
advertising of any goods or services including other preparatory steps
necessary to carry out the sale of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause
mistake, or to deceive; or
155.2 Reproduce, counterfeit, copy or colorably imitate a registered
mark or a dominant feature thereof and apply such reproduction,
counterfeit, copy or colorable imitation to labels, signs, prints, packages,
wrappers, receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to
deceive, shall be liable in a civil action for infringement by the registrant
for the remedies hereinafter set forth: Provided, That the infringement
takes place at the moment any of the acts stated in Subsection 155.1 or
this subsection are committed regardless of whether there is actual sale
of goods or services using the infringing material;
b. Here, respondent did not commit trademark infringement when they
bought from her the SOLANE LPG bearing the registered marks of the
complainant. In fact, it was the supplier of the complainant (Solane
LPG) who supplied and sold the said Solane LPG tanks to the
respondent as they are the one authorized to supply the municipality of
Alfonso Lista, Ifugao. The Solane LPG tank bought by the poseur –
buyer (Celestino Molina Foronda) from respondent is the same
Solane LPG tank supplied by the authorized Solane distributor at
Alfonso Lista, Ifugao.
The respondent is a small-time business woman who only sells small
value items in her store, including the resell of LPGs. She cannot, in any
way, commit the acts of trademark infringement as enumerated under the
law. She is also buying from the distributor of Solane LPG the LPGs
and resell it in her very small store. Respondent is not the one
manufacturing nor reproducing these Solane LPGs but merely a reseller
after they are delivered by the authorized Solane distributor itself.
Respondent is only reselling the Solane LPG, the same LPG she
bought from the Solane truck supplying and distributing in the area
of Alfonso Lista, Ifugao;
c. The complainant has to show that the alleged infringer used the Solane
LPG trademark or a confusingly similar trademark with intent to deceive
the public and defraud its competitor as to what she is selling.
Here, however, the allegations in the complaint – affidavit do not show
that respondent used Solane LPG trademark or a confusingly similar
version of the same to deceive its customers and cheat Solane LPG.
Indeed, in the instant complaint, the tank bearing the Solane LPG tank
found in the store of respondent was a genuine Solane LPG tank. No
proof has been shown that respondent has gone into the business of
distributing imitation Solane LPGs aside from the allegation that the gas
seal was fake.
Thus, with the foregoing facts, the respondent cannot be held liable for
trademark infringement as alleged in the complaint – affidavit;
d. As to the charge of unfair competition, Section 168.3 (a) of R.A. 8293
(also in relation to Section 170) describes the acts constituting the
offense as follows:
168.3. In particular, and without in any way limiting the scope of
protection against unfair competition, the following shall be deemed
guilty of unfair competition:
(a) Any person, who is selling his goods and gives them the general
appearance of goods of another manufacturer or dealer, either as
to the goods themselves or in the wrapping of the packages in
which they are contained, or the devices or words thereon, or in
any other feature of their appearance, which would be likely to
influence purchasers to believe that the goods offered are those of
a manufacturer or dealer, other than the actual manufacturer or
dealer, or who otherwise clothes the goods with such appearance
as shall deceive the public and defraud another of his legitimate
trade, or any subsequent vendor of such goods or any agent of any
vendor engaged in selling such goods with a like purpose;
e. From jurisprudence, unfair competition has been defined as the passing
off (or palming off) or attempting to pass off upon the public of the
goods or business of one person as the goods or business of another with
the end and probable effect of deceiving the public.
Passing off (or palming off) takes place where the defendant, by
imitative devices on the general appearance of the goods, misleads
prospective purchasers into buying his merchandise under the impression
that they are buying that of his competitors. Thus, the defendant gives
his goods the general appearance of the goods of his competitor with the
intention of deceiving the public that the goods are those of his
competitor. (Republic Gas Corporation vs. Petron Corporation, G.R.
No. 194062, June 17, 2013)
By this definition, it is crystal clear that respondent did not commit
unfair competition. As earlier discussed, the Solane LPG tank taken from
the respondent is the same Solane Tank bought by respondent from the
authorized Solane distributor in Alfonso Lista, Ifugao. Respondent, did
not, in any way, use imitative devices to make it appear that what she is
selling is a genuine Solane LPG. What respondent is selling is also the
same Solane LPG she bought from the supplier of Solane LPG.
In short, respondent has no hand in the manufacture of the Solane LPG
tank delivered in her store. She has no participation in the making of the
Solane tank, more so with the putting of the fake gas seal as alleged in
the complaint;
f. It should have been the supplier and/or distributor of these Solane
LPGs who should be held liable for the charges alleged in the
complaint – affidavit and not the respondent who is merely buying these
Solane LPGS from the supplier and reselling it in her store. In truth, it is
the respondent who is also a victim of this alleged crime when she
bought these Solane LPGs from the distributor making her believe that
the Solane LPGs are genuine.
g. Worthy to note that respondent has no intention to defraud the pubic nor
deceive her customers. She is just reselling the LPGs she bought from
the distributor and supplier of those Solane LPGs. There is no showing
that respondent participated in the manufacture of these LPGs for her to
be liable for the offense charged.
h. Passing the question of the sufficiency of the complaint, it may be
observed that the plaintiff in any action is admonished to set forth the
facts constituting his supposed grievance in ordinary and concise
language. He is not required to indicate the particular provision of law
upon which he relies for relief, and if he does so and is mistaken, this
will not preclude him from obtaining relief under a different conception
of the case, provided always that the facts stated and proved justify such
relief. (LA INSULAR Cigar and Cigarette Factory, Inc. vs. B.E. Jao
Oge, G.R. No. L-16588)
In the instant complaint, it clearly states no cause of action for unfair
competition and trademark infringement. It should have been the
distributor of those Solane LPGs who should be liable for the offense
charged in the complaint and not the respondent who is buying those
Solane LPGs and resell it in her store.
3. From the above narration and from all the allegations in the complaint itself, it
is clear that there was NO TRADEMARK INFRINGEMENT and NO
UNFAIR COMPETITION. The allegations of the complaint are untrue and
malicious, stemming from Complainant’s ill intent to obviously harass me
knowing me to be a small-time business woman. For indeed, all my life, I have
never been known to be criminal person since I abhor violence in any form;
4. There is NEITHER LEGAL NOR FACTUAL BASIS for the criminal
complaint for the offense charged filed by the Complainant against me. Thus,
the instant criminal complaint should be DISMISSED for LACK OF MERIT;
5. To this end, I reiterate my strong denial of the malicious and unfair accusation
and all allegations of wrong doing against anyone, and assert my
INNOCENCE in any forum;
6. Further, respondent respectfully prays for such and other reliefs as may be
deemed just and equitable under the law and premises.
IN WITNES WHEREOF, I have hereunto set my hand this 26th day of
January at Lagawe, Ifugao.
PERLITA T. ALVAREZ
Affiant
SUBSCRIBED AND SWORN to before me this ___ day of January, 2021 at
Lagawe, Ifugao. I hereby certify that I have personally examined the above-named
affiant and I am satisfied that the foregoing statements were given by her voluntarily
and of her own free will.
Doc. No. ____
Page No. ___
Book No. ___
Series of 2021.
