Petron Corp. v. Gutierrez

SECOND DIVISION

[G.R. No. 212688. September 16, 2015.]

PETRON CORPORATION,petitioner, vs. JEANNIE C. GUTIERREZ AND THE SECRETARY OF JUSTICE, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated 16 September 2015which reads as follows:

"G.R. No. 212688 — Petron Corporation v. Jeannie C. Gutierrez and The Secretary of Justice.

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the September 2, 2013 Decision 1 and May 19, 2014 Resolution 2 of the Court of Appeals (CA) in CA-G.R. SP No. 124360 which affirmed the July 28, 2010 and January 20, 2012 Resolutions of the Department of Justice (DOJ).

The CA agreed with the DOJ that petitioner Petron Corporation (Petron) failed to establish probable cause that respondent Jeannie C. Gutierrez (Gutierrez) committed trademark infringement in violation of Republic Act (R.A.) No. 8293 or the Intellectual Property Code.

The Antecedents:

Petron is a domestic corporation engaged in, among others, the retail and sale of liquefied petroleum gas (LPG) while Gutierrez is the registered owner and sole proprietor of JVG Gas Center, engaged in the business of sale and distribution of LPG and other fuel.

On February 14, 2005, Bernabe Alajar, together with some of his personnel from Able Research and Consulting Services, Inc. (ARCS) of Petron proceeded to two branches of JVG Gas Center and purchased from each store an LPG product branded as "Gasul" for P365.00. The test-buy items were brought to Jose Facundo J. Palafox (Palafox), Petron's Branch Protection Unit Coordinator, who attested that the test-buy items were counterfeit. Acting thereon, Palafox instructed ARCS and its general counsel to proceed with the investigation of Gutierrez's establishments. ARCS personnel then conducted a follow-up investigation in coordination with Supervising Agent Dave Segunial (SA Segunial) of the National Bureau of Investigation (NBI).

On March 4, 2005, ARCS personnel and SA Segunial visited Gutierrez's two stores and confirmed that she was engaged in the sale and distribution of LPG products using the same container as that used by Petron in the sale of its genuine Gasul LPG products and bearing the trademarks and devices of Petron. Thereafter, SA Segunial filed with the Regional Trial Court (RTC) of Manila an application for the issuance of search warrants (SW) against Gutierrez and her two establishments. SW No. 05-6286 was issued for Gutierrez's JVG Gas Center at 152 Don Sixto Antonio Avenue, Pasig City, which when served, resulted in the seizure of thirteen (13) counterfeit 11-kg Gasul LPG Products and one (1) motorcycle with Plate No. UC-3284; and SW No. 05-6298 was issued and served at her store at No. 4 Kabayanihan Road, Karangalan Village, Pasig City, resulting in the seizure of thirty-five (35) filled and six (6) empty counterfeit 11-kg Gasul LPG products.

Consequently, a complaint for violation of Section 155.1, in relation to Section 170, of the Intellectual Property Code was filed before the Office of the Chief State Prosecutor against Gutierrez for the unauthorized sale and/or distribution of counterfeit LPG products using the same containers as those used by Petron. SW No. 05-6286 became the subject of I.S. No. 2005-1108, and SW No. 05-6298 became the subject of I.S. No. 2005-1110.

In her Counter-Affidavit, 3 Gutierrez averred that the charge against her was that she was reportedly engaged in the distribution, sale and/or offering for sale illegally refilled, counterfeit Gasul products and sold LPG products labeled as "Gasul" LPG but, in truth and in fact, Petron had absolutely nothing to do with those LPG products except that, without its knowledge and consent, the establishment sold LPG products using the same container as that used by Petron for its own genuine Gasul LPG products; that Petron did not claim that the confiscated LPG cylinders were counterfeit or fake; that there was no evidence that she engaged in the distribution, sale and/or offering for sale of illegally refilled, counterfeit Gasul LPG products; that the LPG products confiscated by Petron were legitimately purchased from CDV Gas and Appliance Center and Pasig Gas Center, both of which were authorized Petron dealers as evidenced by photocopies of the receipts.

In a Resolution, 4 dated September 23, 2008, the Chief State Prosecutor (CSP) found no probable cause to hold Gutierrez liable for the alleged violations. It stated that Petron failed to submit a certification issued by its product expert that the LPG products that were confiscated were indeed counterfeit. The CSP noted that Palafox, who reportedly examined and confirmed that the confiscated LPG products were counterfeit Gasul products, did not execute any formal statement or report on the matter.

Aggrieved, Petron filed a petition for review before the DOJ-Task Force on Anti-Intellectual Property Piracy.

In its Resolution, 5 dated July 28, 2010, the DOJ dismissed the petition as follows:

We have carefully examined the petition and its attachments and we found no error committed by the prosecutor that would justify the reversal of the assailed resolution which is in accord with the evidence adduced and relevant jurisprudence. As established during the preliminary investigation, complainant failed to submit a certification by a Petron product expert that the contents of the confiscated Petron Gasul products were in fact counterfeit. It must be noted that mere allegations can never be considered as repositories of truth, and hence, cannot serve as foundations of findings of probable cause.

WHEREFORE, the petition for review is hereby DISMISSED.

SO ORDERED.

[Emphasis Supplied]

Upon denial of its motion for reconsideration, 6 Petron filed a petition before the CA.

In its Decision 7 dated September 2, 2013, the CA held that the Investigating Prosecutor and the Secretary of Justice committed no abuse of discretion in dismissing the complaint against Gutierrez, reasoning out that Petron failed to establish probable cause that Gutierrez committed trademark infringement in violation of the Intellectual Property Code. It agreed with the CA that Petron failed to prove that the contents of the Gasul LPG cylinders seized from the business establishments of Gutierrez were counterfeit for failure to present a certification from its product expert. The CA added that Petron's statement that the subject LPG cylinders were illegally refilled by persons/entities other than Petron itself was a mere self-serving statement unacceptable as evidence. On these bases, the CA ruled as follows:

WHEREFORE, the Petition is DENIED. Resolution dated July 28, 2010, and the Resolution dated January 20, 2012, issued in I.S. No. 2005-1108 and I.S. No. 2005-1110 by the Office of the Secretary, Department of Justice are AFFIRMED.

SO ORDERED. 8

Petron filed a motion for reconsideration but was denied in the CA's Resolution dated May 19, 2014.

Hence, this petition anchored on the following:

GROUNDS

I.

The Court of Appeals gravely erred in requiring a product expert certification as a prerequisite to a probable cause finding. The gravemen of the offense charged is simply the use of the same container as that of the registered trademark owner, without the latter's consent, in the sale and/or distribution of products. A certification from a product expert is not a requirement, much less an indispensable one, to charge Respondent, especially considering that the product sold (LPG) is generic.

II.

It had been established by the requisite quantum of evidence that the Gasul LPG cylinders seized from Respondent's establishments had been refilled by unauthorized persons or entities, and not by Petitioner. If at all material, a product expert certification would only be corroborative. The Court of Appeals also gravely erred in dismissing the statements of Atty. Gilbert Reyes, Mr. Bernabe Alajar and SA Dave Segunial, which are admissible and not "self-serving."

III.

There is certainly, and at the very least, probable cause that Private Respondent committed the offense charged against her. The Court of Appeals gravely erred when it sustained the findings of the Secretary of Justice and the Investigating Prosecutor, who committed grave abuse of discretion when they ignored the material evidence at hand and insisted in a grossly erroneous interpretation of the law.

IV.

While the Department of Justice has ample discretion to determine what and whom to charge, it has no authority to amend the laws that it must enforce, as it did in this case. That is grave abuse of discretion, which the Court of Appeals failed and refused to rectify. 9

ISSUE

All the grounds can be synthesized into one question: Whether the CA committed a reversible error in upholding the decision of the Secretary of Justice finding that there was no probable cause to charge Gutierrez for trademark infringement.

In their Comment, 10 Gutierrez and the Office of the Solicitor General (OSG) countered that the CA was correct in finding that the Secretary of Justice did not commit grave abuse of discretion in dismissing Petron's complaint for lack of probable cause to charge Gutierrez for violation of trademark infringement.

Gutierrez further contends that the petition failed to raise questions of law, that the issue of whether or not probable cause exists to indict private respondent for trademark infringement is a question of fact as it involves a review of the evidence which had already been judiciously resolved and decided by the investigating prosecutor, the secretary of the DOJ, and the CA. Such question is not reviewable by this Court which, as a rule, confines its review of cases decided by the CA only to questions of law raised in the petition.

The Court's Ruling

Essentially, Petron is asking this Court to determine if probable cause exists to indict Gutierrez for trademark infringement under Section 155.1, in relation to Section 170, of R.A. No. 8293. Such determination of probable cause, however, is a factual issue the resolution of which is improper in a Rule 45 petition. 11

At any rate, the Court finds sufficient reason to dismiss the petition as the record shows that the finding of both the trial court and the CA is based on the evidence on record, law and jurisprudence.

Probable cause for purposes of filing a criminal information is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed, and that it was committed by the accused. Probable cause, although it requires less than evidence justifying a conviction, demands more than bare suspicion. 12

The determination of what constitutes sufficient evidence to establish probable cause for the filing of an information against a supposed offender lies within the discretion of the public prosecutor. As explained by this Court in Callo-Claridad v. Esteban: 13

A public prosecutor alone determines the sufficiency of evidence that establishes the probable cause justifying the filing of a criminal information against the respondent because the determination of existence of a probable cause is the function of the public prosecutor. Generally, the public prosecutor is afforded a wide latitude of discretion in the conduct of a preliminary investigation. Consequently, it is a sound judicial policy to refrain from interfering in the conduct of preliminary investigations, and to just leave to the Department of Justice the ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justice's findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion. By way of exception, however, judicial review is permitted where the respondent in the preliminary investigation clearly establishes that the public prosecutor committed grave abuse of discretion, that is, when the public prosecutor has exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law.

[Underscoring Supplied]

In this case, no grave abuse of discretion may be imputed on the part of the public prosecutor in finding that probable cause to charge Gutierrez for violation of trademark infringement did not exist.

Records disclose that Gutierrez purchased the subject Petron Gasul LPG cylinders with their contents from CDV Gas and Appliance Center and Pasig Gas Center, both authorized by Petron to distribute and sell Petron Gasul LPG products. Said purchases were supported by receipts and invoices issued in the name of Gutierrez. As correctly observed by the OSG, the invoices reflected the logo of Petron which all the more indicated that the Petron Gasul LPG products purchased by and confiscated from Gutierrez were genuine. Thus, Petron cannot claim that the Gasul LPG products seized from Gutierrez were illegally refilled.

Moreover, it should be noted that Petron did not contest Gutierrez's claim that CDV Gas and Appliance Center and Pasig Gas Center were authorized Petron Gasul LPG products distributor and seller. As such, Petron cannot claim that the products purchased by Gutierrez from said establishments were illegally filled.

Petron cannot rely on the affidavits of Atty. Gilbert Reyes, Bernabe Alajar and SA Segunial as proof that Gasul LPG cylinders were refilled by unauthorized persons/entities. Both private respondent and the OSG properly noted that these individuals had no personal knowledge about the alleged illegal refilling of the Petron Gasul LPG cylinders as it was Palafox who determined and concluded that the same were illegally refilled. As correctly opined by the State Prosecutor and sustained by the Secretary of Justice, mere allegations without any formal statement or report that the seized items were indeed counterfeit were insufficient to establish probable cause for purposes of filing Informations for trademark infringement against Gutierrez. As aptly held by the CA:

The statement that the contents of the GASUL cylinders are counterfeit, is a conclusion of fact, as it has not been shown how the contents were determined to be counterfeit; while the statement that it was illegally re-filled by persons/entities other than the petitioner, is a self-serving statement. Neither statement is acceptable as evidence. 14

In fine, the CA committed no reversible error when it affirmed the DOJ's dismissal of the complaints for insufficiency of evidence.

WHEREFORE, the petition is DENIED. (Brion, J.,on leave, Perez, J., designated Acting Member, per Special Order No. 2191, dated September 16, 2015)

SO ORDERED."

Very truly yours,

 

(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court

Footnotes

1. Penned by Associate Justice Victoria Isabel A. Paredes with Associate Justices Japar B. Dimaampao and Elihu A. Ybañez, concurring; rollo, pp. 44-55.

2. Id. at 58-59.

3. Id. at 135-139.

4. Id. at 160-162.

5. Id. at 209-211.

6. Resolution, dated January 20, 2012, id. at 232-233.

7. Id. at 44-55.

8. Id. at 55.

9. Id. at 19-21.

10. Dated October 15, 2014 (id. at 329-336) and December 8, 2014 (id. at 349-360), respectively.

11. Levi Strauss (Phil.), Inc. v. Lim, 593 Phil. 435, 446 (2008).

12. Callo-Claridad v. Esteban, G.R. No. 191567, March 20, 2013, 694 SCRA 185, citing Kalalo v. Office of the Ombudsman, 633 Phil. 160, 161 (2010).

13. Id.

14. Rollo, pp. 53-54.