WILSON ONG CHING KIAN CHUAN, petitioner, vs. HON.
BRANCH (hereafter Ceroilfood Shandong), based in Qingdao,
COURT OF APPEALS and LORENZO
TAN, respondents.
DECISION
QUISUMBING, J.:
This petition for review[1]seeks to annul the decision [2] dated
August 27, 1997 of the Court of Appeals which set aside the
resolutions[3] dated October 13 and December 15, 1993 as well as the
order dated March 1, 1994 of the Regional Trial Court of Quezon City,
Branch 94.[4]
Petitioner Wilson Ong Ching Kian Chuan (Ong),
imports vermicelli from China National Cereals Oils and Foodstuffs
Import and Export Corporation, based in Beijing, China, under the
firm name C.K.C. Trading. He repacks it in cellophane wrappers with
a design of two-dragons and the TOWER trademark on the uppermost
portion. Ong acquired a Certificate of Copyright Registration from the
National Library on June 9, 1993 on the said design.
Ong discovered that private respondent Lorenzo Tan repacked
his vermicelli he imports from the same company but based in
Qingdao, China in a nearly identical wrapper. On September 16, 1993,
Ong filed against Tan a verified complaint for infringement of
copyright with damages and prayer for temporary restraining order or
writ of preliminary injunction with the Regional Trial Court in Quezon
City. Ong alleged that he was the holder of a Certificate of Copyright
Registration over the cellophane wrapper with the two-dragon design,
and that Tan used an identical wrapper in his business. In his prayer
for a preliminary injunction in addition to damages, he asked that Tan
be restrained from using the wrapper. He said he would post a bond to
guarantee the payment of damages resulting from the issuance of the
writ of preliminary injunction.
The trial court issued a temporary restraining order on the same
date the complaint was filed. Tan filed an opposition to Ongs
application for a writ of preliminary injunction with counter-
application for the issuance of a similar writ against Ong. Tan alleged
that Ong was not entitled to an injunction. According to Tan, Ong did
not have a clear right over the use of the trademark Pagoda and
Lungkow vermicelli as these were registered in the name of CHINA
NATIONAL CEREALS OIL AND FOODSTUFFS IMPORT AND
EXPORT CORPORATION, SHANDONG CEREALS AND OILS
China. Further, Tan averred that he was the exclusive distributor in
the Philippines of the Pagoda and Lungkow vermicelli and was solely
authorized to use said trademark. He added that Ong merely copied
the two-dragon design from Ceroilfood Shandong which had the
Certificates of Registration issued by different countries. He
concluded that Ongs Certificate of Copyright Registration was not
valid for lack of originality.
On September 30, 1993, Ong countered Tans opposition to the
issuance of the writ of preliminary injunction.
On October 13, 1993, the court issued the writ in Ongs favor upon
his filing of a P100,000.00 bond.[5]
Tan filed a motion to dissolve the writ of preliminary injunction,
but the trial court denied it on December 15, 1993. [6] The motion for
reconsideration was also denied on March 1, 1994.
Tan elevated the case to the Court of Appeals via a special civil
action for certiorari with a prayer for the issuance of a TRO and/or
writ of preliminary injunction. Ong filed an opposition to Tans prayer
for an issuance of TRO and/or writ of preliminary injunction on the
ground that the trial court did not commit a grave abuse of discretion
in issuing the writ in his favor.
After oral argument, the Court of Appeals rendered a decision on
August 8, 1994, setting aside the trial courts order. It decreed:
WHEREFORE, the petition is GIVEN DUE COURSE, and
GRANTED. The order dated October 13, 1993 and related orders, as
well as the writ of preliminary injunction issued by the respondent
court, are SET ASIDE as issued with grave abuse of discretion. No
costs.
SO ORDERED.[7]
Ong filed a motion for reconsideration and on January 3, 1995,
the Court of Appeals modified its August 8, 1994 order as follows:
WHEREFORE the phrase the order dated October 13, 1993 and
related orders, as well as the writ of preliminary injunction issued by
the respondent court, are SET ASIDE as issued with grave abuse of
discretion is hereby deleted in our resolution dated 08 August 1994.
In all other respects, said resolution must be maintained.
However, let a writ of preliminary injunction be issued enjoining the
herein respondents and any and all persons acting for and in their
behalf from enforcing and/or implementing the Writ of Preliminary
Injunction issued on October 15, 1993 pursuant to the Resolution
dated October 13, 1993 of the PUBLIC RESPONDENT in Civil Case
No. Q-93-17628 entitled WILSON ONG CHING KIAN CHUAN, ETC.
vs. LORENZO TAN, ETC. upon petitioners filing of a bond of
P200,000.00.
The Branch Clerk of Court of the RTC, Branch 94, Quezon City is
directed to elevate the records of Civil Case No. 293-17128 within TEN
(10) DAYS from notice.
The parties are given THIRTY (30) DAYS from notice to file their
memorandum or any pertinent manifestation on the matter, after
which the case shall be considered submitted for decision.
SO ORDERED.[8]
Pursuant to the Court of Appeals resolution on January 16, 1996,
the parties submitted their memoranda. On August 27, 1997, the
appellate court promulgated its decision, decreeing as follows:
WHEREFORE, the resolutions dated October 13, 1993 and December
15, 1993 as well as the order dated March 1, 1994 - all in Civil Case No.
Q-93-17628 are hereby SET ASIDE and our injunction heretofore
issued made permanent.
IT IS SO ORDERED.[9]
On October 17, 1997, Ong filed the instant petition for review,
claiming that the Court of Appeals committed grave and serious errors
tantamount to acting with grave abuse of discretion and/or acting
without or in excess of its jurisdiction:
I. WHEN IT ISSUED A PERMANENT PRELIMINARY
INJUNCTION IN FAVOR OF THE PRIVATE
RESPONDENT WHEN THE LATTERS RIGHT TO SUCH
A RELIEF IS NOT CLEAR, DOUBTFUL AND HAS NO
LEGAL OR FACTUAL BASIS.
A. CERTIFICATE OF COPYRIGHT REGISTRATION
JUSTIFY ISSUANCE OF WRIT OF PRELIMINARY
INJUNCTION UNDER P.D. NO. 49.
B. ISSUANCE OF PRELIMINARY INJUNCTION MUST BE
BASED ON CLEAR AND UNMISTAKABLE RIGHT WHICH
PETITIONER HAD AND WHICH RIGHT WAS INVADED
BY THE PRIVATE RESPONDENT.
C. COURT OF APPEALS DECISION OF AUGUST 8, 1994
AND ITS RESOLUTION OF JANUARY 3, 1995 RESULTS IN
CONFUSION.
II. BY INTERFERING WITH THE JUDICIAL DISCRETION
OF THE TRIAL COURT.
A. RESPONDENT COURT OF APPEALS INTERFERENCE
WITH THE DISCRETION OF TRIAL COURT
CONSTITUTES GRAVE ABUSE OF DISCRETION.
III. BY ISSUING A WRIT OF PRELIMINARY INJUNCTION
IN FAVOR OF THE PRIVATE RESPONDENT AND
DISREGARDING THE WRIT OF PRELIMINARY
INJUNCTION ISSUED BY THE TRIAL COURT WHOM
(SIC), UNDER THE JANUARY 13, 1995 RESOLUTION
OF RESPONDENT COURT OF APPEALS, WAS
JUDICIALLY HELD NOT TO HAVE COMMITTED ANY
GRAVE ABUSE OF DISCRETION IN THE ISSUANCE OF
THE OCTOBER 13, 1993 AND RELATED ORDERS.
A. ISSUANCE OF WRIT OF PRELIMINARY INJUNCTION
ADDRESSED TO THE SOUND DISCRETION OF THE
TRIAL COURT.
IV. WHEN IT MADE ITS OWN FINDINGS AND
CONCLUSIONS, PRE-EMPTING THE TRIAL COURT
AND PRE-JUDGING THE CASE, THUS LEAVING THE
TRIAL COURT WITH NOTHING TO RULE UPON.
A. COURT OF APPEALS PREJUDGED THE CASE
REMANDED TO THE TRIAL COURT
The issues for our determination are: Was the issuance of the writ
of preliminary injunction proper? Was there grave abuse of discretion
committed by the Court of Appeals when it set aside the order of the
trial court, then issued a judgment touching on the merits?
Petitioner avers that the CA erred in issuing a preliminary
injunction in private respondents favor. He says, firstly, that he is
more entitled to it. He states that as holder of the Certificate of
Copyright Registration of the twin-dragon design, he has the
protection of P.D. No. 49.[10] Said law allows an injunction in case of
infringement. Petitioner asserts that private respondent has no
registered copyright and merely relies on the trademark of his
principal abroad, which insofar as Philippine laws is concerned,
cannot prevail over the petitioners copyright.
Private respondent, for his part, avers that petitioner has no clear
right over the use of the copyrighted wrapper since the PAGODA
trademark and label were first adopted and used and have been duly
registered by Ceroilfood Shandong not only in China but in nearly 20
countries and regions worldwide. Petitioner was not the original
creator of the label, but merely copied the design of Ceroilfood
Shandong. Private respondent presented copies of the certificates of
copyright registration in the name of Ceroilfood Shandong issued by
at least twenty countries and regions worldwide which although
unauthenticated are, according to him, sufficient to provide a
sampling of the evidence needed in the determination of the grant of
preliminary injunction.[11] Private respondent alleges, that the
trademark PAGODA BRAND was registered in China on October 31,
1979[12] while the trademark LUNGKOW VERMICELLI WITH TWO-
DRAGON DEVICE was registered on August 15, 1985.[13]
To resolve this controversy, we have to return to basics. A person
to be entitled to a copyright must be the original creator of the
work. He must have created it by his own skill, labor and judgment
without directly copying or evasively imitating the work of another.
[14]
 The grant of preliminary injunction in a case rests on the sound
discretion of the court with the caveat that it should be made with
extreme caution.[15] Its grant depends chiefly on the extent of doubt on
the validity of the copyright, existence of infringement, and the
damages sustained by such infringement. [16] In our view, the copies of
the certificates of copyright registered in the name of Ceroilfood
Shandong sufficiently raise reasonable doubt. With such a doubt, the
preliminary injunction is unavailing. [17] In Medina vs. City Sheriff,
Manila, 276 SCRA 133, 139 (1997), where the complainants title was
disputed, we held that injunction was not proper.
Petitioner Ong argues that the Court of Appeals erred and
contradicted itself in its January 3, 1995 Resolution, where it deleted
the phrase the order dated October 13, 1993 and related orders, as
well as the writ of preliminary injunction issued by the respondent
court, are SET ASIDE as issued with grave abuse of discretion in its
August 8, 1994 decision, and at the same time issued a writ of
preliminary injunction in Tans favor.
Ongs claim (that the Court of Appeals in deleting the aforequoted
phrase in the August 8, 1994 decision abandoned its earlier finding of
grave abuse of discretion on the part of the trial court), however, is
without logical basis. The appellate court merely restated in its own
words the issue raised in the petition: from a) whether the RTC
committed grave abuse of discretion, to b) whether Tan was entitled to
an injunctive relief. Then it clarified that the relief sought is a
prohibition against Ong and his agents from enforcing the writ of
preliminary injunction. Properly understood, an order enjoining the
enforcement of a writ of preliminary injunction issued by the RTC in
a certiorari proceeding under Rule 65 of the Rules of Court effectively
sets aside the RTC order for being issued with grave abuse of
discretion.
To be entitled to an injunctive writ, petitioner must show, inter
alia, the existence of a clear and unmistakable right and an urgent and
paramount necessity for the writ to prevent serious damage. [18]From
the above discussion, we find that petitioners right has not been
clearly and unmistakably demonstrated. That right is what is in
dispute and has yet to be determined. In Developers Group of
Companies, Inc. vs. Court of Appeals, 219 SCRA 715, 722-723 (1993),
we held that in the absence of proof of a legal right and
the injury sustained by the plaintiff, an order of the trial court
granting the issuance of an injunctive writ will be set aside, for having
been issued with grave abuse of discretion. Conformably, there was no
abuse of discretion by the Court of Appeals when it issued its own
order to restrain the enforcement of the preliminary injunction issued
by the trial court.
Finally, we note that the complaint initially filed with the RTC
was for infringement of copyright. The trial courts resolution subject
of Tans petition under Rule 65 before the CA concerns the correctness
of the grant of the writ of preliminary injunction. The only issue
brought before the CA involved the grave abuse of discretion allegedly
committed by the trial court in granting the writ of preliminary
injunction. The Court of Appeals in declaring that the wrapper of
petitioner is a copy of Ceroilfood Shandongs wrapper went beyond
that issue and touched on the merits of the infringement case, which
remains to be decided by the trial court. [19] In our view, it was
premature for the Court of Appeals to declare that the design of
petitioners wrapper is a copy of the wrapper allegedly registered by
Ceroilfood Shandong. That matter remains for decision after
appropriate proceedings at the trial court.

WHEREFORE, the instant petition is PARTIALLY

GRANTED. The prayer for a writ of preliminary injunction to prohibit
Tan from using the cellophane wrapper with two-dragon device is
denied, but the finding of the respondent appellate court that Ongs
copyrighted wrapper is a copy of that of Ceroilfood Shandong is SET
ASIDE for being premature. The Regional Trial Court of Quezon City,
Branch 94, is directed to proceed with the trial to determine the
merits of Civil Case No. 33779 expeditiously. Let the records of this
case be REMANDED to said trial court promptly.

No pronouncement as to costs.

SO ORDERED.
VENANCIO SAMBAR, doing business under the name and
style of CVS Garment Enterprises, petitioner, vs.
LEVI STRAUSS & CO., and LEVI STRAUSS (PHIL.),
INC., respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari prays for the reversal of the
decision dated January 30, 1998, of the Court of Appeals in CA-G.R.
CV No. 51553. That decision affirmed the decision in Civil Case No.
88-2220 of the Regional Trial Court, Branch 66, Makati City, making
permanent the writ of preliminary injunction, ordering CVS Garment
and Industrial Company (CVSGIC) and petitioner Venancio Sambar to
pay private respondents jointly and solidarily the sum of P50,000 as
temperate and nominal damages, P10,000 as exemplary damages,
and P25,000 as attorneys fees and litigation costs, and ordering the
Director of the National Library to cancel Copyright Registration No.
1-1998 in the name of Venancio Sambar.
The facts are as follows:
On September 28, 1987, private respondents, through a letter
from their legal officer, demanded that CVS Garment Enterprises
(CVSGE) desist from using their stitched arcuate design on the
Europress jeans which CVSGE advertised in the Manila Bulletin.
Atty. Benjamin Gruba, counsel of CVSGE, replied that the arcuate
design on the back pockets of Europress jeans was different from the
design on the back pockets of Levis jeans. He further asserted that his
client had a copyright on the design it was using.
Thereafter, private respondents filed a complaint against Sambar,
doing business under the name and style of CVSGE. Private
respondents also impleaded the Director of the National
Library.Summons was sent to Sambar in his business address at 161-B
Iriga corner Retiro, La Loma, Quezon City.
Atty. Gruba claimed that he erroneously received the original
summons as he mistook it as addressed to his client, CVSGIC. He
returned the summons and the pleadings and manifested in court that
CVSGE, which was formerly doing business in the premises, already
stopped operation and CVSGIC took over CVSGEs occupation of the
premises. He also claimed he did not know the whereabouts of
Sambar, the alleged owner of CVSGE.
Thereafter, private respondents amended their complaint to
include CVSGIC. When private respondents learned the whereabouts
of Sambar and CVSGE, the case was revived.
Private respondents alleged in their complaint that Levi Strauss
and Co. (LS&Co.), an internationally known clothing manufacturer,
owns the arcuate design trademark which was registered under U.S.
Trademark Registration No. 404, 248 on November 16, 1943, and in
the Principal Register of trademarks with the Philippine Patent Office
under Certificate of Registration No. 20240 issued on October 8,
1973; that through a Trademark Technical Data and Technical
Assistance Agreement with Levi Strauss (Phil.) Inc. (LSPI) in 1972,
LS&Co. granted LSPI a non-exclusive license to use the arcuate
trademark in its manufacture and sale of Levis pants, jackets and
shirts in the Philippines; that in 1983, LS&Co. also appointed LSPI as
its agent and attorney-in-fact to protect its trademark in the
Philippines; and that sometime in 1987, CVSGIC and Venancio
Sambar, without the consent and authority of private respondents and
in infringement and unfair competition, sold and advertised, and
despite demands to cease and desist, continued to manufacture, sell
and advertise denim pants under the brand name Europress with back
pockets bearing a design similar to the arcuate trademark of private
respondents, thereby causing confusion on the buying public,
prejudicial to private respondents goodwill and property right.
In its answer, CVSGIC admitted it manufactured, sold and
advertised and was still manufacturing and selling denim pants under
the brand name of Europress, bearing a back pocket design of two
double arcs meeting in the middle. However, it denied that there was
infringement or unfair competition because the display rooms of
department stores where Levis and Europress jeans were sold, were
distinctively segregated by billboards and other modes of
advertisement. CVSGIC avers that the public would not be confused
on the ownership of such known trademark as Levis, Jag, Europress,
etc..Also, CVSGIC claimed that it had its own original arcuate design,
as evidenced by Copyright Registration No. 1-1998, which was very
different and distinct from Levis design. CVSGIC prayed for actual,
moral and exemplary damages by way of counterclaim.
Petitioner Venancio Sambar filed a separate answer. He denied he
was connected with CVSGIC. He admitted that Copyright Registration
No. 1-1998 was issued to him, but he denied using it. He also said he
did not authorize anyone to use the copyrighted design. He
counterclaimed for moral and exemplary damages and payment of
attorneys fees.
After hearing, the trial court issued a writ of preliminary
injunction enjoining CVSGIC and petitioner from manufacturing,
advertising and selling pants with the arcuate design on their back
pockets.CVSGIC and petitioner did not appear during the October 13
and 27, 1993 hearings, when they were to present
evidence. Consequently, the trial court ruled that they waived their
right to present evidence.
On May 3, 1995, the trial court rendered its decision. The
dispositive portion reads:
IN VIEW OF THE FOREGOING, judgment is hereby rendered:
a) making the writ of preliminary injunction permanent;
b) ordering the defendants CVS Garment and Industrial Company and
Venancio Sambar to pay the plaintiffs jointly and solidarily the sum of
P50,000.00 as temperate and nominal damages, the sum of
P10,000.00 as exemplary damages, and the sum of P25,000.00 as
attorneys fees and litigation expenses and to pay the costs.
SO ORDERED.[1]
Private respondents moved for a reconsideration praying for the
cancellation of petitioners copyright registration. The trial court
granted reconsideration in its July 14, 1995 order, thus:
IN VIEW OF THE FOREGOING, judgment is hereby rendered:
a) making the writ of preliminary injunction permanent;
b) ordering the defendants CVS Garment and Industrial Company and
Venancio Sambar to pay the plaintiffs jointly and solidarily the sum of
P50,000.00 as temperate and nominal damages, the sum of
P10,000.00 as exemplary damages, and the sum of P25,000.00 as
attorneys fees and litigation expenses and to pay the costs;
c) ordering the Director of the National Library to cancel the
Copyright Registration No. 1-1998 issued in the name of Venancio
Sambar.[2]
Petitioner appealed to the Court of Appeals which on January 30,
1998 decided in favor of private respondents as follows:
WHEREFORE, the judgment appealed from is AFFIRMED in toto.
SO ORDERED.[3]
In this instant petition, petitioner avers that the Court of Appeals
erred in:
I. ...RULING THAT THERE WAS AN INFRINGEMENT OF
RESPONDENTS ARCUATE MARK.
II. ...RULING THAT PETITIONER IS JOINTLY AND
SOLIDARILY LIABLE WITH CVS GARMENTS
INDUSTRIAL CORPORATION FOR INFRINGEMENT OF
RESPONDENTS ARCUATE MARK.
III. ...IN ORDERING, THERE BEING NO INFRINGEMENT
OR UNFAIR COMPETITION, THE AWARD OF
DAMAGES AND CANCELLATION OF COPYRIGHT
REGISTRATION NO. 1-1998 ISSUED IN THE NAME OF
PETITIONER.[4]
Briefly, we are asked to resolve the following issues:
1. Did petitioner infringe on private respondents arcuate design?
2. Must we hold petitioner solidarily liable with CVS Garments
Industrial Corporation?
3. Are private respondents entitled to nominal, temperate and
exemplary damages and cancellation of petitioners copyright?
On the first issue, petitioner claims that he did not infringe on
private respondents arcuate design because there was no colorable
imitation which deceived or confused the public. He cites Emerald
Garment Manufacturing Corporation vs. Court of Appeals, G.R. No.
100098, 251 SCRA 600 (1995), as authority. He disagreed with the
Court of Appeals that there were confusing similarities between Levis
and Europress arcuate designs, despite the trial courts observation of
differences in them. Petitioner maintains that although the
backpocket designs had similarities, the public was not confused
because Levis jeans had other marks not found in Europress
jeans. Further, he says Levis long history and popularity made its
trademark easily identifiable by the public.
In its comment, private respondents aver that the Court of
Appeals did not err in ruling that there was infringement in this
case. The backpocket design of Europress jeans, a double arc
intersecting in the middle was the same as Levis mark, also a double
arc intersecting at the center. Although the trial court found
differences in the two designs, these differences were not
noticeable. Further, private respondents said, infringement of
trademark did not require exact similarity. Colorable imitation
enough to cause confusion among the public, was sufficient for a
trademark to be infringed. Private respondents explained that in a
market research they conducted with 600 respondents, the result
showed that the public was confused by Europress trademark vis the
Levis trademark.
We find that the first issue raised by petitioner is factual. The
basic rule is that factual questions are beyond the province of this
Court in a petition for review. Although there are exceptions to this
rule, this case is not one of them. [5] Hence, we find no reason to
disturb the findings of the Court of Appeals that Europress use of the
arcuate design was an infringement of the Levis design.
On the second issue, petitioner claims that private respondents
did not show that he was connected with CVSGIC, nor did they prove
his specific acts of infringement to make him liable for
damages.Again, this is a factual matter and factual findings of the trial
court, concurred in by the Court of Appeals, are final and binding on
this Court.[6] Both the courts below found that petitioner had a
copyright over Europress arcuate design and that he consented to the
use of said design by CVSGIC. We are bound by this finding, especially
in the absence of a showing that it was tainted with arbitrariness or
palpable error.[7] It must be stressed that it was immaterial whether or
not petitioner was connected with CVSGIC. What is relevant is that
petitioner had a copyright over the design and that he allowed the use
of the same by CVSGIC.
Petitioner also contends that the Court of Appeals erred when it
said that he had the burden to prove that he was not connected with
CVSGIC and that he did not authorize anyone to use his copyrighted
design. According to petitioner, these are important elements of
private respondents cause of action against him, hence, private
respondents had the ultimate burden of proof.
Pertinent is Section 1, Rule 131 of the Rules of Court [8] which
provides that the burden of proof is the duty of a party to prove the
truth of his claim or defense, or any fact in issue by the amount of
evidence required by law. In civil cases, the burden of proof may be on
either the plaintiff or the defendant. It is on the latter, if in his answer
he alleges an affirmative defense, which is not a denial of an essential
ingredient in the plaintiffs cause of action, but is one which, if
established, will be a good defense i.e., an avoidance of the claim,
which prima facie, the plaintiff already has because of the defendants
own admissions in the pleadings.[9]
Petitioners defense in this case was an affirmative defense. He did
not deny that private respondents owned the arcuate trademark nor
that CVSGIC used on its products a similar arcuate design. What he
averred was that although he owned the copyright on the Europress
arcuate design, he did not allow CVSGIC to use it. He also said he was
not connected with CVSGIC. These were not alleged by private
respondents in their pleadings, and petitioner therefore had the
burden to prove these.
Lastly, are private respondents entitled to nominal, temperate
and exemplary damages and cancellation of petitioners copyright?
Petitioner insists that he had not infringed on the arcuate
trademark, hence, there was no basis for nominal and temperate
damages. Also, an award of nominal damages precludes an award of
temperate damages. He cites Ventanilla vs. Centeno, G.R. No. L-
14333, 1 SCRA 215 (1961) on this. Thus, he contends,
assuming arguendo that there was infringement, the Court of Appeals
still erred in awarding both nominal and temperate damages.
Petitioner likewise said that the grant of exemplary damages was
inconsistent with the trial courts finding that the design of Europress
jeans was not similar to Levis design and that no pecuniary loss was
suffered by respondents to entitle them to such damages.
Lastly, petitioner maintains that as Europress arcuate design is
not a copy of that of Levis, citing the trial courts findings that although
there are similarities, there are also differences in the two designs,
cancellation of his copyright was not justified.
On this matter, private respondents assert that the lower courts
found that there was infringement and Levis was entitled to damages
based on Sections 22 and 23 of RA No. 166 otherwise known as the
Trade Mark Law,[10] as amended, which was the law then
governing. Said sections define infringement and prescribe the
remedies therefor. Further, private respondents aver it was
misleading for petitioner to claim that the trial court ruled that private
respondents did not suffer pecuniary loss, suggesting that the award
of damages was improper. According to the private respondents, the
trial court did not make any such ruling. It simply stated that there
was no evidence that Levis had suffered decline in its sales because of
the use of the arcuate design by Europress jeans. They offer that while
there may be no direct proof that they suffered a decline in sales,
damages may still be measured based on a reasonable percentage of
the gross sales of the respondents, pursuant to Section 23 of the
Trademark law.[11]
Finally, regarding the cancellation of petitioners copyright,
private respondents deny that the trial court ruled that the arcuate
design of Europress jeans was not the same as Levis arcuate design
jeans.On the contrary, the trial court expressly ruled that there was
similarity. The cancellation of petitioners copyright was justified
because petitioners copyright can not prevail over respondents
registration in the Principal Register of Bureau of Patents,
Trademarks, and Technology Transfer. According to private
respondents, the essence of copyright registration is originality and a
copied design is inherently non-copyrightable. They insist that
registration does not confer originality upon a copycat version of a
prior design.
From the foregoing discussion, it is clear that the matters raised
by petitioner in relation to the last issue are purely factual, except the
matter of nominal and temperate damages. Petitioner claims that
damages are not due private respondents and his copyright should not
be cancelled because he had not infringed on Levis trademark. Both
the trial court and the Court of Appeals found there was
infringement. Thus, the award of damages and cancellation of
petitioners copyright are appropriate.[12] Award of damages is clearly
provided in Section 23,[13] while cancellation of petitioners copyright
finds basis on the fact that the design was a mere copy of that of
private respondents trademark. To be entitled to copyright, the thing
being copyrighted must be original, created by the author through his
own skill, labor and judgment, without directly copying or evasively
imitating the work of another.[14]
was infringement means they suffered losses for which they are
entitled to moderate damages.[16] We find that the award
of P50,000.00 as temperate damages fair and reasonable, considering
the circumstances herein as well as the global coverage and reputation
of private respondents Levi Strauss & Company and Levi Strauss
(Phil.), Inc.
WHEREFORE, the decision dated January 30, 1998, of the
Court of Appeals, in CA-G.R. CV No. 51553 AFFIRMING the judgment
of the Regional Trial Court of Makati, Branch 66, dated July 14, 1995,
is hereby MODIFIED so that nominal damages are deleted but the
amount of P50,000 is hereby awarded only as TEMPERATE
DAMAGES. In all other respects, said judgment is hereby AFFIRMED,
to wit:
a) the writ of preliminary injunction is made permanent;
b) the defendants CVS Garment and Industrial Company and
Venancio Sambar are ordered also to pay the plaintiffs
jointly and solidarily the sum of P10,000.00 as exemplary
damages, and the sum of P25,000.00 as attorneys fees
and litigation expenses, and to pay the costs; and
c) the Director of the National Library is ordered to cancel
the Copyright Registration No. 1-1998 issued in the name
of Venancio Sambar.
SO ORDERED.

However, we agree with petitioner that it was error for the Court
of Appeals to affirm the award of nominal damages combined with
temperate damages[15] by the Regional Trial Court of Makati. What
respondents are entitled to is an award for temperate damages, not
nominal damages. For although the exact amount of damage or loss
can not be determined with reasonable certainty, the fact that there
UNILEVER PHILIPPINES G.R. No. 119280
(PRC), INC.,
 
THE HONORABLE COURT
OF APPEALS and PROCTER
AND GAMBLE PHILIPPINES,
INC.,  fact, in 1986, in Italy, the tac-tac key visual was
 
In this petition for review under Rule 45 of the Rules of Court,
petitioner assails the February 24, 1995 decision [1] of the Court of
Appeals (CA) in CA-G.R. SP No. 35242 entitled Unilever Philippines
(PRC), Inc. v. Honorable Fernando V. Gorospe, Jr. and Procter and
Gamble Philippines, Inc. (P&GP) which affirmed the issuance by the
court a quo of a writ of preliminary injunction against it. The writ
enjoined petitioner from using and airing, until further orders of the
court, certain television commercials for its laundry products claimed
to be identical or similar to its double tug or tac-tac key visual.[2]
 
Petitioner alleges that the writ of preliminary injunction was
issued by the trial court (and affirmed by the CA) without any
evidence of private respondents clear and unmistakable right to the
writ. Petitioner further contends that the preliminary injunction
issued against it already disposed of the main case without trial, thus
denying petitioner of any opportunity to present evidence on its
behalf.
The antecedents show that on August 24, 1994, private respondent
Procter and Gamble Phils., Inc. filed a complaint for injunction with
damages and a prayer for temporary restraining order and/or writ of
preliminary injunction against petitioner Unilever, alleging that:
 
1.5.           As early as 1982, a P&G subsidiary in Italy
used a key visual in the advertisement of its
laundry detergent and bleaching products. This
key visual known as the double-tug or tac-
tac demonstration shows the fabric being held
by both hands and stretched sideways.
 
1.6.           The tac-tac was conceptualized for P&G by
the advertising agency Milano and Gray of Italy
in 1982. The tac-tac was used in the same year
in an advertisement entitled All aperto to
demonstrate the effect on fabrics of one
of P&GPs products, a liquid bleach called Ace.
x x x x x x x x x
 
1.7.           Since then, P&G has used the tac-tac key
visual in the advertisement of its products. In
used in the television commercial for Ace
entitled Kite.
 
1.8.           P&G has used the same distinctive tac-tac key
visual to local consumers in the Philippines.
 
x x x x x x x x x
 
1.10.       Substantially and materially imitating the
aforesaid tac-tac key visual of P&GP and in
blatant disregard of P&GPs intellectual property
rights, Unilever on 24 July 1993 started airing a
60 second television commercial TVC of its
Breeze Powerwhite laundry product called
Porky. The said TVC included a stretching
visual presentation and sound effects almost
[identical] or substantially similar
to P&GPs tac-tac key visual.
x x x x x x x x x
 
1.14.       On July 15, 1994, P&GP aired in the
Philippines, the same Kite television
advertisement it used in Italy in 1986, merely
dubbing the Italian language with Filipino for
the same produce Ace bleaching liquid
which P&GP now markets in the Philippines.
 
1.15.       On August 1, 1994, Unilever filed a Complaint
with the Advertising Board of the Philippines to
prevent P&GP from airing the Kite television
advertisement.[3]
 
On August 26, 1994, Judge Gorospe issued an order granting a
temporary restraining order and setting it for hearing on September 2,
1994 for Unilever to show cause why the writ of preliminary PUBLIC RESPONDENT IN ISSUING THE
injunction should not issue. During the hearing on September 2, 1994, VOID ORDER HAD DEPRIVED PETITIONER OF
P&GP received Unilevers answer with opposition to preliminary SUBSTANTIVE AND PROCEDURAL DUE PROCESS;
injunction. P&GP filed its reply to Unilevers opposition to a PUBLIC RESPONDENT HAD FORECLOSED
preliminary injunction on September 6, 1994. PETITIONERS RIGHT AND THE OPPORTUNITY TO
  CROSS-EXAMINE PROCTERS WITNESSES ABAD
During the hearing on September 9, 1994, AND HERBOSA.[4]
Judge Gorospe ordered petitioner to submit a sur-rejoinder. P&GP  
received Unilevers rejoinder to reply on September 13, 1994. The  
following day, on September 14, 1994, P&GP filed its sur-reply to On February 24, 1995, the CA rendered its decision finding
Unilevers rejoinder. that Judge Gorospe did not act with grave abuse of discretion in
  issuing the disputed order. The petition for certiorari was thus
On September 19, 1994, P&GP received a copy of the order dismissed for lack of merit.
dated September 16, 1994 ordering the issuance of a writ of  
preliminary injunction and fixing a bond of P100,000. On the same After a careful perusal of the records, we agree with the CA and
date, P&GP filed the required bond issued by Prudential Guarantee affirm its decision in toto:
and Assurance, Inc.  
  Petitioner does not deny that the questioned TV
On September 21, 1994, petitioner appealed to the CA advertisements are substantially similar
assigning the following errors allegedly committed by the court a to P&GPs double tug or tac-tac key visual. However, it
quo, to wit: submits that P&GP is not entitled to the relief
  demanded, which is to enjoin petitioner from airing
PUBLIC RESPONDENT HAD ACTED said TV advertisements, for the reason that petitioner
WITHOUT OR IN EXCESS OF JURISDICTION AND has Certificates of Copyright Registration for which
WITH GRAVE ABUSE OF DISCRETION advertisements while P&GP has none with respect to its
AMOUNTING TO LACK OF JURISDICTION IN double-tug or tac-tac key visual. In other words, it is
ISSUING THE WRIT OF PRELIMINARY petitioners contention that P&GP is not entitled to any
INJUNCTION IN VIOLATION OF THE RULES ON protection because it has not registered with the
EVIDENCE AND PROCEDURE, PARTICULARLY OF National Library the very TV commercials which it
SEC. 3 (a), RULE 58 OF THE REVISED RULES OF claims have been infringed by petitioner.
COURT AND OF THE PREVAILING  
JURISPRUDENCE. We disagree. Section 2 of PD 49 stipulates that
  the copyright for a work or intellectual creation subsists
PUBLIC RESPONDENT IN ISSUING THE from the moment of its creation. Accordingly, the
VOID ORDER DATED SEPTEMBER 16, 1994, HAD, creator acquires copyright for his work right upon its
IN EFFECT, ALREADY PREJUDGED THE MERITS creation. Contrary to petitioners contention, the
OF THE MAIN CASE. intellectual creators exercise and enjoyment of
  copyright for his work and the protection given by law
PUBLIC RESPONDENT HAD ISSUED THE to him is not contingent or dependent on any formality
VOID ORDER ACCORDING RELIEF TO A NON- or registration. Therefore, taking the material
PARTY IN CIVIL CASE NO. 94-2434 WITHOUT allegations of paragraphs 1.3 to 1.5 of P&GPsverified
JURISDICTION. Complaint in the context of PD 49, it cannot be
  seriously doubted that at least, for purposes of
determining whether preliminary injunction should
issue during the pendency of the case, P&GP is entitled
to the injunctive relief prayed for in its Complaint.
 
The second ground is likewise not well-taken.
As adverted to earlier, the provisional remedy of
preliminary injunction will not issue unless it is shown
in the verified complaint that plaintiff is probably
entitled to the relief demanded, which consists in whole
or in part in restraining the commission or continuance
of the acts complained of.In view of such requirement,
the court has to make a tentative determination if the
right sought to be protected exists and whether the act
against which the writ is to be directed is violative of
such right. Certainly, the courts determination as to the
propriety of issuing the writ cannot be taken as a
prejudgment of the merits of the case because it is
tentative in nature and the writ may be dissolved
during or after the trial if the court finds that plaintiff
was not entitled to it.
 
x x x x x x x x x
 
Obviously, the determination made by the court
a quo was only for purposes of preliminary injunction,
without passing upon the merits of the case, which
cannot be done until after a full-blown hearing is
conducted.
 
The third ground is patently unmeritorious. As
alleged in the Complaint P&GP is a subsidiary of
Procter and Gamble Company (P&G) for which the
double tug or tac-tac key visual was conceptualized or
created. In that capacity, P&GP used the said TV
advertisement in the Philippines to promote its
products. As such subsidiary, P&GP is definitely within
the protective mantle of the statute (Sec. 6, PD 49).
 
Finally, We find the procedure adopted by the
court a quo to be in order.
 
The record clearly shows that respondent Judge
followed the (procedure provided for in Section 5, Rule
58, as amended by BP 224, and Paragraph A(8) of the
Interim Rules). In fact, the court a quo set the incident
for hearing on September 2, 1994, at which date
petitioner was ordered to show cause why the writ
should not be issued. Petitioner filed an Opposition to
the application for preliminary injunction. The same
incident was again set for hearing on September 9,
1994, during which the parties made some
manifestations in support of their respective
positions. Subsequent to such hearing petitioner filed a
Reply to P&GPs Rejoinder to its Opposition. Under the
foregoing circumstances, it is absurd to even suggest
that petitioner was not given its day in court in the
matter of the issuance of the preliminary injunctive
relief.
 
x x x x x x x x x
 
There was of course extreme urgency for the
court a quo to act on plaintiffs application for
preliminary injunction. The airing of TV commercials is
necessarily of limited duration only. Without such
temporary relief, any permanent injunction against the
infringing TV advertisements of which P&GP may
possibly succeed in getting after the main case is finally
adjudicated could be illusory if by then such
advertisements are no longer used or aired by
petitioner. It is therefore not difficult to perceive the
possible irreparable damage which P&GP may suffer if
respondent Judge did not act promptly on its
application for preliminary injunction.[5]
 
 
Preliminary injunction is a provisional remedy
intended to provide protection to parties for the
preservation of their rights or interests during
the pendency of the principal action.[6] Thus, Section1,
Rule 58 of the Rules of Court provides:
 
Section 1. Preliminary injunction defined;
classes. A preliminary injunction is an order granted at
any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
 agency or a person to refrain from a particular act or
acts. It may also require the performance of a particular
act or acts, in which case it shall be known as a
preliminary mandatory injunction.
 
Injunction is resorted to only when there is a pressing
necessity to avoid injurious consequences which cannot be remedied
under any standard compensation. [7] As correctly ruled by the CA,
there was an extreme urgency to grant the preliminary injunction
prayed for by P&GP considering that TV commercials are aired for a
limited period of time only. In fact, this Court takes note of the fact
that the TV commercial in issue ― the Kite TV advertisement ― is no
longer aired today, more than 10 years after the injunction was
granted on September 16, 1994.
 The sole objective of a writ of preliminary injunction is to
preserve the status quo until the merits of the case can be heard fully.
[8]
 A writ of preliminary injunction is generally based solely on initial
and incomplete evidence.[9] Thus, it was impossible for the court a
quo to fully dispose of the case, as claimed by petitioner, without all
the evidence needed for the full resolution of the same. To date, the
main case still has to be resolved by the trial court.The issuance of a
preliminary injunction rests entirely on the discretion of the court and
is generally not interfered with except in cases of manifest abuse.
[10]
 There was no such abuse in the case at bar, especially because
petitioner was given all the opportunity to oppose the application for
injunction. The fact was, it failed to convince the court why the
injunction should not be issued. Thus, in Santos v. Court of Appeals,
[11]
 we held that no grave abuse of discretion can be attributed to a
judge or body issuing a writ of preliminary injunction where a party
has not been deprived of its day in court as it was heard and it
exhaustively presented all its arguments and defenses.
 
WHEREFORE, the petition is hereby DENIED.
 
Costs against petitioner.
 
SO ORDERED.
FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS,
INC., petitioners, vs. FRANKLIN DRILON GABRIEL
ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and
CASEY FRANCISCO, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari. Petitioners seek to annul the
resolution of the Department of Justice, dated August 12, 1992, in
Criminal Case No. Q-92-27854, entitled Gabriel Zosa, et al. v. City
Prosecutor of Quezon City and Francisco Joaquin, Jr., and its
resolution, dated December 3, 1992, denying petitioner Joaquins
motion for reconsideration.
Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of
Certificate of Copyright No. M922, dated January 28, 1971, of Rhoda
and Me, a dating game show aired from 1970 to 1977.
On June 28, 1973, petitioner BJPI submitted to the National
Library an addendum to its certificate of copyright specifying the
shows format and style of presentation.
On July 14, 1991, while watching television, petitioner Francisco
Joaquin, Jr., president of BJPI, saw on RPN Channel 9 an episode
of Its a Date, which was produced by IXL Productions, Inc. (IXL). On
July 18, 1991, he wrote a letter to private respondent Gabriel M. Zosa,
president and general manager of IXL, informing Zosa that BJPI had
a copyright to Rhoda and Me and demanding that IXL discontinue
airing Its a Date.
In a letter, dated July 19, 1991, private respondent Zosa
apologized to petitioner Joaquin and requested a meeting to discuss a
possible settlement. IXL, however, continued airing Its a Date,
prompting petitioner Joaquin to send a second letter on July 25, 1991
in which he reiterated his demand and warned that, if IXL did not
comply, he would endorse the matter to his attorneys for proper legal
action.
Meanwhile, private respondent Zosa sought to register IXLs
copyright to the first episode of Its a Date for which it was issued by
the National Library a certificate of copyright on August 14, 1991.
Upon complaint of petitioners, an information for violation of
P.D. No. 49 was filed against private respondent Zosa together with
certain officers of RPN Channel 9, namely, William Esposo, Felipe
Medina, and Casey Francisco, in the Regional Trial Court of Quezon
City where it was docketed as Criminal Case No. 92-27854 and
assigned to Branch 104 thereof. However, private respondent Zosa
sought a review of the resolution of the Assistant City Prosecutor
before the Department of Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M.
Drilon reversed the Assistant City Prosecutors findings and directed
him to move for the dismissal of the case against private
respondents. [1]
Petitioner Joaquin filed a motion for reconsideration, but his
motion was denied by respondent Secretary of Justice on December 3,
1992. Hence, this petition. Petitioners contend that:
1. The public respondent gravely abused his discretion
amounting to lack of jurisdiction when he invoked non-
presentation of the master tape as being fatal to the
existence of probable cause to prove infringement, despite
the fact that private respondents never raised the same as
a controverted issue.
2. The public respondent gravely abused his discretion
amounting to lack of jurisdiction when he arrogated unto
himself the determination of what is copyrightable - an
issue which is exclusively within the jurisdiction of the
regional trial court to assess in a proper proceeding.
Both public and private respondents maintain that petitioners
failed to establish the existence of probable cause due to their failure
to present the copyrighted master videotape of Rhoda and Me. They
contend that petitioner BJPIs copyright covers only a specific episode
of Rhoda and Me and that the formats or concepts of dating game
shows are not covered by copyright protection under P. D. No. 49.
Non-Assignment of Error
Petitioners claim that their failure to submit the copyrighted
master videotape of the television show Rhoda and Me was not raised
in issue by private respondents during the preliminary investigation
and, therefore, it was error for the Secretary of Justice to reverse the
investigating prosecutors finding of probable cause on this ground.
 A preliminary investigation falls under the authority of the state
prosecutor who is given by law the power to direct and control
criminal actions.[2] He is, however, subject to the control of the
Secretary of Justice. Thus, Rule 112, 4 of the Revised Rules of Criminal
Procedure, provides:
SEC. 4. Duty of investigating fiscal. - If the investigating
fiscal finds cause to hold the respondent for trial, he shall
prepare the resolution and corresponding information. He
shall certify under oath that he, or as shown by the record, an
authorized officer, has personally examined the complainant
and his witnesses, that there is reasonable ground to believe
that a crime has been committed and that the accused is
probably guilty thereof, that the accused was informed of the
complaint and of the evidence submitted against him and that
he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend dismissal of the
complaint.
In either case, he shall forward the records of the case to
the provincial or city fiscal or chief state prosecutor within five
(5) days from his resolution. The latter shall take appropriate
action thereon within ten (10) days from receipt thereof,
immediately informing the parties of said action.
No complaint or information may be filed or dismissed by
an investigating fiscal without the prior written authority or
approval of the provincial or city fiscal or chief state
prosecutor.
Where the investigating assistant fiscal recommends the
dismissal of the case but his findings are reversed by the
provincial or city fiscal or chief state prosecutor on the ground
that a probable cause exists, the latter may, by himself, file the
corresponding information against the respondent or direct
any other assistant fiscal or state prosecutor to do so, without
conducting another preliminary investigation.
If upon petition by a proper party, the Secretary of Justice
reverses the resolution of the provincial or city fiscal or chief
state prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal
of the complaint or information.
In reviewing resolutions of prosecutors, the Secretary of Justice is
not precluded from considering errors, although unassigned, for the
purpose of determining whether there is probable cause for filing
cases in court. He must make his own finding of probable cause and is
not confined to the issues raised by the parties during preliminary
investigation. Moreover, his findings are not subject to review unless
shown to have been made with grave abuse.
Opinion of the Secretary of Justice
Petitioners contend, however, that the determination of the
question whether the format or mechanics of a show is entitled to
copyright protection is for the court, and not the Secretary of Justice,
to make. They assail the following portion of the resolution of the
respondent Secretary of Justice:
[T]he essence of copyright infringement is the copying, in whole
or in part, of copyrightable materials as defined and enumerated
in Section 2 of PD. No. 49. Apart from the manner in which it is
actually expressed, however, the idea of a dating game show is,
in the opinion of this Office, a non-copyrightable material. Ideas,
concepts, formats, or schemes in their abstract form clearly do
not fall within the class of works or materials susceptible of
copyright registration as provided in PD. No. 49.[3] (Emphasis
added.)
It is indeed true that the question whether the format or
mechanics of petitioners television show is entitled to copyright
protection is a legal question for the court to make. This does not,
however, preclude respondent Secretary of Justice from making a
preliminary determination of this question in resolving whether there
is probable cause for filing the case in court. In doing so in this case,
he did not commit any grave error.
Petitioners claim that respondent Secretary of Justice gravely
abused his discretion in ruling that the master videotape should have
been presented in order to determine whether there was probable
cause for copyright infringement. They contend
that 20th Century Fox Film Corporation v. Court of Appeals,[4] on
which respondent Secretary of Justice relied in reversing the
resolution of the investigating prosecutor, is inapplicable to the case at
bar because in the present case, the parties presented sufficient
evidence which clearly establish linkages between the copyrighted
show Rhoda and Meand the infringing TV show Its a Date.[5]
The case of 20th Century Fox Film Corporation involved raids
conducted on various videotape outlets allegedly selling or renting out
pirated videotapes. The trial court found that the affidavits of NBI
agents, given in support of the application for the search warrant,
were insufficient without the master tape. Accordingly, the trial court
lifted the search warrants it had previously issued against the
defendants. On petition for review, this Court sustained the action of
the trial court and ruled:[6]
The presentation of the master tapes of the copyrighted films from
which the pirated films were allegedly copied, was necessary for the
validity of search warrants against those who have in their possession
the pirated films. The petitioners argument to the effect that the
presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not
determinative of whether or not a probable cause exists to justify the
issuance of the search warrants is not meritorious. The court cannot
presume that duplicate or copied tapes were necessarily reproduced
from master tapes that it owns.
The application for search warrants was directed against video tape
outlets which allegedly were engaged in the unauthorized sale and
renting out of copyrighted films belonging to the petitioner pursuant
to P.D. 49.
The essence of a copyright infringement is the similarity or at least
substantial similarity of the purported pirated works to the
copyrighted work. Hence, the applicant must present to the court the
copyrighted films to compare them with the purchased evidence of the
video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the
copyrighted films to the pirated films must be established to satisfy
the requirements of probable cause. Mere allegations as to the
existence of the copyrighted films cannot serve as basis for the
issuance of a search warrant.
This ruling was qualified in the later case of Columbia Pictures, Inc. v.
Court of Appeals[7] in which it was held:
In fine, the supposed pronunciamento in said case regarding the
necessity for the presentation of the master tapes of the copyrighted
films for the validity of search warrants should at most be understood
to merely serve as a guidepost in determining the existence of
probable cause in copyright infringement cases where there is doubt
as to the true nexus between the master tape and the pirated
copies. An objective and careful reading of the decision in said case
could lead to no other conclusion than that said directive was hardly
intended to be a sweeping and inflexible requirement in all or similar
copyright infringement cases. . . .[8]
In the case at bar, during the preliminary investigation,
petitioners and private respondents presented written descriptions of
the formats of their respective televisions shows, on the basis of which
the investigating prosecutor ruled:
As may [be] gleaned from the evidence on record, the substance of the
television productions complainants RHODA AND ME and Zosas ITS
A DATE is that two matches are made between a male and a female,
both single, and the two couples are treated to a night or two of dining
and/or dancing at the expense of the show. The major concepts of
both shows is the same. Any difference appear mere variations of the
major concepts.
That there is an infringement on the copyright of the show RHODA
AND ME both in content and in the execution of the video
presentation are established because respondents ITS A DATE is
practically an exact copy of complainants RHODA AND ME because
of substantial similarities as follows, to wit:
RHODA AND ME ITS A DATE
Set I Set I
a. Unmarried participant a. same
of one gender (searcher) appears on one side of a divider, while
three (3) unmarried participants of the other gender are on
the other side of the divider. This arrangement is done to
ensure that the searcher does not see the searchees.
b. Searcher asks a question b. same
to be answered
by each
of the
searche
es. The
purpos
e is to
determi
ne who
among 
the
 searche (A) Books, including composite and cyclopedic works, manuscripts,
es is the directories, and gazetteers;
most (B) Periodicals, including pamphlets and newspapers;
compat (C) Lectures, sermons, addresses, dissertations prepared for oral
ible delivery;
with (D) Letters;
the (E) Dramatic or dramatico-musical compositions; choreographic
searche works and entertainments in dumb shows, the acting form of which is
r. fixed in writing or otherwise;
c. Searcher speculates on the c. same (F) Musical compositions, with or without words;
match to the searchee. (G) Works of drawing, painting, architecture, sculpture, engraving,
d. Selection is made by the d. Selection is lithography, and other works of art; models or designs for works of
use of compute (sic) methods, based on the art;
or by the way questions are answer of the (H) Reproductions of a work of art;
answered, or similar methods. Searchees. (I) Original ornamental designs or models for articles of manufacture,
Set 2 Set 2 whether or not patentable, and other works of applied art;
Same as above with the genders same (J) Maps, plans, sketches, and charts;
of the (K) Drawings or plastic works of a scientific or technical character;
searc (L) Photographic works and works produced by a process analogous
her to photography; lantern slides;
and (M) Cinematographic works and works produced by a process
searc analogous to cinematography or any process for making audio-visual
hees recordings;
inter (N) Computer programs;
chan (O) Prints, pictorial illustrations advertising copies, labels, tags, and
ged. box wraps;
[9]
(P) Dramatizations, translations, adaptations, abridgements,
arrangements and other alterations of literary, musical or artistic
Petitioners assert that the format of Rhoda and Me is a product of works or of works of the Philippine government as herein defined,
ingenuity and skill and is thus entitled to copyright protection. It is which shall be protected as provided in Section 8 of this Decree.
their position that the presentation of a point-by-point comparison of (Q) Collections of literary, scholarly, or artistic works or of works
the formats of the two shows clearly demonstrates the nexus between referred to in Section 9 of this Decree which by reason of the selection
the shows and hence establishes the existence of probable cause for and arrangement of their contents constitute intellectual creations,
copyright infringement. Such being the case, they did not have to the same to be protected as such in accordance with Section 8 of this
produce the master tape. Decree.
(R) Other literary, scholarly, scientific and artistic works.
To begin with, the format of a show is not copyrightable. Section 2
of P.D. No. 49,[10] otherwise known as the DECREE ON This provision is substantially the same as 172 of the
INTELLECTUAL PROPERTY, enumerates the classes of work entitled INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R.A. No.
to copyright protection, to wit: 8293).[11] The format or mechanics of a television show is not included
in the list of protected works in 2 of P.D. No. 49. For this reason, the
Section 2. The rights granted by this Decree shall, from the moment of protection afforded by the law cannot be extended to cover them.
creation, subsist with respect to any of the following classes of works:
Copyright, in the strict sense of the term, is purely a statutory right. It
is a new or independent right granted by the statute, and not simply a
pre-existing right regulated by the statute. Being a statutory grant, the
rights are only such as the statute confers, and may be obtained and
enjoyed only with respect to the subjects and by the persons, and on
terms and conditions specified in the statute. [12]
Since . . . copyright in published works is purely a statutory creation, a
copyright may be obtained only for a work falling within the statutory
enumeration or description.[13]
Regardless of the historical viewpoint, it is authoritatively settled in
the United States that there is no copyright
except that which is both created and secured by act of Congress . . . .
[14]
petitioner BJPIs copyright, the investigating prosecutor should have
the opportunity to compare the videotapes of the two shows.
Mere description by words of the general format of the two dating
game shows is insufficient; the presentation of the master videotape in
evidence was indispensable to the determination of the existence of
probable cause. As aptly observed by respondent Secretary of Justice:
A television show includes more than mere words can describe
because it involves a whole spectrum of visuals and effects, video
and audio, such that no similarity or dissimilarity may be found
by merely describing the general copyright/format of both dating
game shows.[16]
WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
P.D. No. 49, 2, in enumerating what are subject to copyright,
refers to finished works and not to concepts. The copyright does not
extend to an idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.[15] Thus,
the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
provides:

Sec. 175. Unprotected Subject Matter. - Notwithstanding the

provisions of Sections 172 and 173, no protection shall extend, under
this law, to any idea, procedure, system, method or operation,
concept, principle, discovery or mere data as such, even if they are
expressed, explained, illustrated or embodied in a work; news of the
day and other miscellaneous facts having the character of mere items
of press information; or any official text of a legislative, administrative
or legal nature, as well as any official translation thereof.

What then is the subject matter of petitioners copyright? This

Court is of the opinion that petitioner BJPIs copyright covers audio-
visual recordings of each episode of Rhoda and Me, as falling within
the class of works mentioned in P.D. 49, 2(M), to wit:

Cinematographic works and works produced by a process analogous

to cinematography or any process for making audio-visual recordings;
The copyright does not extend to the general concept or format of its
dating game show. Accordingly, by the very nature of the subject of
UNITED FEATURE SYNDICATE, INC., petitioner,  b) On October 18, 1984 — as shown in
vs.
MUNSINGWEAR CREATION MANUFACTURING
COMPANY, respondent.
Quasha, Asperilla, Ancheta, Pena and Nolasco for petitioner.
Jaime G. Manzano for private respondent.
PARAS, J.:
This is a petition for review on certiorari filed by United Feature
Syndicate Inc., seeking to set aside the Resolution of the Seventh
Division of the Court of Appeals * dated September 16, 1986
dismissing the appeal of petitioner-appellant for having been filed out
of time and denying its Motion for Reconsideration for lack of merit in
its Resolution dated October 14, 1986.
The Resolution dismissing the appeal, reads as follows:
We agree with the Philippine Patent Office and
respondent appellee that the decision of the
aforementioned office dated October 2, 1984 had
already become final and executory at the time the
Notice of Appeal was filed.
Our reasons for this conclusions are borne out by the
following facts:
a) On October 2, 1984, the decision
sought to be appealed was rendered by
the Philippine Patent Office and a copy
thereof was received by counsel for
petitioner-appellant on October 3, 1984
— not October 9, 1984 as stated in the
Notice of Appeal. There can be no doubt
about the decision having been received
by petitioner-appellant's counsel
on October 3, 1984 for this is clearly
written in the Notice of Decision (p. 61,
Original Record), and in point of fact the
date of receipt cannot be October 9,
1984, as declared in the Notice of Appeal
(p. 1, Rollo), because in the motion for
reconsideration subsequently filed by
petitioner-appellant it was stated that a
copy of the decision was received
on October 4, 1984 (p. 80, Original
Record).
the stamp mark of the Philippine Patent
Office (p. 80, Original Record) or on the
15th and last day either for appealing or
for moving for reconsideration,
petitioner-appellant filed a motion for
reconsideration.
Sadly and unexplainably for a veteran law office, said
motion did not contain or incorporate a notice of
hearing.
c) Possibly realizing the fatal defect in its
motion for reconsideration, petitioner-
appellant subsequently filed a motion to
set for hearing its motion for
reconsideration. This was done,
however, only on October 31, 1984 (p.
162, Original Record).
The motion for reconsideration filed on the last day,
fatally failing as it did to contain a notice of hearing,
said pleading did not interrupt the period for
appealing, for the motion was nothing but a piece of
scrap paper (Agricultural and Industrial Marketing,
Inc. v. Court of Appeals, 118 SCRA [1982]
492; Republic Planters Bank v. Intermediate
Appellate Court, 13 SCRA [1984] 631).
This deadly and moral deficiency in the motion for
reconsideration, therefore, resulted in the decision of
the Philippine Patent Office being final and executory
on October 19, 1984, the day after the motion for
reconsideration was filed, said motion having been
filed on the 15th and last day for appealing.
WHEREFORE, the motion of respondent appellee is
hereby granted and the appeal dismissed.
SO ORDERED. (Rollo 42-43)
This case arose from petition filed by petitioner for the cancellation of
the registration of trademark CHARLIE BROWN (Registration No.
SR. 4224) in the name of respondent MUNSINGWEAR in Inter Partes
Case No. 1350 entitled "United Feature Syndicate, Inc. v.
Munsingwear Creation Mfg. Co.", with the Philippine Patent Office
alleging that petitioner is damaged by the registration of the
trademark CHARLIE BROWN of T-Shirts under Class 25 with the ITS APPEAL ON STRICT TECHNICAL RULES OF
Registration No. SR-4224 dated September 12, 1979 in the name of PROCEDURE AS ENUNCIATED IN RULE 15 OF THE
Munsingwear Creation Manufacturing Co., Inc., on the following RULES OF COURT INSTEAD OF RELYING ON THE
grounds: (1) that respondent was not entitled to the registration of the POLICY OF THE PHILIPPINE PATENT OFFICE AS
mark CHARLIE BROWN, & DEVICE at the time of application for STRESSED IN RULE 169, AS AMENDED, OF THE
registration; (2) that CHARLIE BROWN is a character creation or a RULES OF PRACTICE IN TRADEMARK CASES.
pictorial illustration, the copyright to which is exclusively owned II
worldwide by the petitioner; (3) that as the owner of the pictorial WHETHER THE RESPONDENT COURT OF APPEALS
illustration CHARLIE BROWN, petitioner has since 1950 and COMMITTED GRAVE ABUSE OF DISCRETION
continuously up to the present, used and reproduced the same to the AMOUNTING TO EXCESS OF JURISDICTION WHEN
exclusion of others; (4) that the respondent-registrant has no bona BY DISMISSING THE APPEAL TO IT FROM THE
fide use of the trademark in commerce in the Philippines prior to its DECISION OF THE DIRECTOR OF PATENTS, IT
application for registration. (Petition, p. 2, Rollo, p. 8) KNOWINGLY DISREGARDED ITS OWN DECISION
On October 2, 1984 the Director of the Philippine Patent Office IN AC-GR. SP. NO. 0342, WHICH WAS AFFIRMED
rendered a decision in this case holding that a copyright registration BY THIS HONORABLE SUPREME COURT TO THE
like that of the name and likeness of CHARLIE BROWN may not EFFECT THAT A COPYRIGHTED CHARACTER MAY
provide a cause of action for the cancellation of a trademark NOT BE APPROPRIATED AS A TRADEMARK BY
registration, (Petition, p. 4; Rollo, p. 10 ) ANOTHER UNDER PRESIDENTIAL DECREE NO. 49.
Petitioner filed a motion for reconsideration of the decision rendered III
by the Philippine Patent Office which was denied by the Director of WHETHER, ASSUMING ARGUENDO, BUT ONLY
said office on the ground that the Decision No. 84-83 was already final ASSUMING, THAT THE DECISION OF THE
and executory (Petition, Rollo, pp. 11-12). DIRECTOR OF PATENTS IN THE CASE AT BAR HAD
ALREADY BECOME FINAL WHEN IT WAS
From this decision, petitioner-appellant appealed to the Court of APPEALED TO THE COURT OF APPEALS, THE
Appeals and respondent court in its resolution dated September 16, LATTER, BY REASON OF THE SUPERVENING
1986 denied the appeal. While the Motion for Reconsideration was FACTS AFTER THE DECISION APPEALED FROM
filed on time, that is, on the last day within which to appeal, still it is a WAS RENDERED, SHOULD HAVE HARMONIZED
mere scrap of paper because there was no, date, of hearing stated THE DECISION WITH LAW, THE DEMANDS OF
therein. JUSTICE AND EQUITY.

Subsequently, petitioner-appellant filed a motion for reconsideration
which public respondent denied for lack of merit( Annex "B", Rollo p.
45)..
Hence this petition for review on certiorari.
In the resolution of April 6, 1987, the petition was given due course.
In its petition (Rollo, p. 10) and in its memorandum (Rollo, p. 97),
petitioner-appellant raised the following legal issues:
I Otherwise stated such shortcomings of petitioner as to compliance
WHETHER THE RESPONDENT COURT OF APPEALS
ACTED IN EXCESS OF JURISDICTION AND/OR
COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT BASED ITS RESOLUTION IN DISMISSING
The petitioner is impressed with merit.
Petitioner's contention that the purpose of a notice of hearing to the
adverse party is to afford him an opportunity to resist the motion,
more particularly the motion for reconsideration filed by its company
is well taken. Said purpose was served when Munsingwear filed its
opposition thereto on November 20, 1984 and cured the technical
defect of lack of notice of hearing complained of (Rollo, p. 52).
with procedural requirements in taking its appeal cannot be deemed
sufficient to deprive it of a chance to secure a review by this court in
order to obtain substantial justice; more so where liverality accorded
to the petitioner becomes compelling because of the ostensible merit
of petitioner's case (Olango v. Court of First Instance of Misamis
Oriental, 121 SCRA 338 [1983]).
Moreover, in Siguenza v. Court of Appeals, (137 SCRA 570 [1985])
the Court stressed that the right to appeal should not be lightly
disregarded by a stringent application of rules of procedure especially
where the appeal is on its face meritorious and the interest of
substantial justice would be served by permitting the appeal.
As enunciated in the case of Castro v. Court of Appeals (123 SCRA
782, [1983]) the importance and real purpose of the remedy of appeal
was stressed as follows:
An appeal is an essential part of oar judicial
system. We have advised the courts to proceed with
caution so as not to deprive a party of the right to
appeal. (National Waterworks and Sewerage Authority
v. Municipality of Libmanan, 97 SCRA 138) and
instructed that every party-litigant should beafforded
the amplest opportunity for the proper and just
disposition of his cause, freed from the constraints of
technicalities. (A-One Feeds, Inc. v. Court of Appeals,
100 SCRA 590).
The rules of procedure are not to be applied in a very
rigid and technical sense. The rules of procedure are
used only to help secure not override substantial
justice. (Gregorio v. Court of Appeals, 72 SCRA 120),
therefore, we ruled in Republic v. Court of Appeals (83
SCRA 453) that a six day delay in the perfection of the
appeal does not warrant its dismissal. And again
in Ramos v. Bagaso, 96 SCRA 395, this Court held
that the delay of four (4) days in filing a notice of
appeal and a motion for extension of time to file a
record on appeal can be excused on the basis of equity.
It was further emphasized that we allowed the filing of an appeal in
some cases where a stringent application of the rules would have
denied it, or when to do so would serve the demands of substantial
justice and in the exercise of our equity jurisdiction (Serrano v. Court
of Appeals, 139 SCRA 179 [1085].)
In the case at bar, the petitioner's delay in filing their record on
appeal should not be strictly construed as to deprive them of the right
to appeal especially since on its face the appeal appears to be
impressed with merit. (Emphasis supplied). All aforementioned cases
are cited in G.R. No. 76595, Pacific Asia Overseas Shipping
Corporation v. NLRC, et al., May 6, 1988.
Procedural technicality should not prevail over substantive rights of a
party to appeal (NEA v. CA, 126 SCRA 394).
Moreover, a judgment of the Court of Appeals that become final by
reason of the mistake of the herein petitioner's lawyer may still be
reviewed on appeal by the Supreme Court particularly where the
Supreme Court already gave due course to the petition for review
(Ernesto v. Court of Appeals, 116 SCRA 755 [1982]).
Where strong considerations of substantial justice are manifest in the
petition, this Court may relax the stringent application of technical
rules in the exercise of equity jurisdiction. In addition to the basic
merits of the main case, such petition usually embodies justifying
circumstances which warrant our heeding the petitioner's cry for
justice, inspite of the earlier negligence of counsel (Serrano v. Court of
Appeals et al., 139 SCRA 179 [1985]).
In a number of cases, this Court in the exercise of equity jurisdiction
decided to disregard technicalities in order to resolve the case on its
merits based on the evidence (St. Peter Memorial Park, Inc. et al. v.
Cleofas, 121 SCRA 287, [1983]; Helmuth, Jr. v. People of the
Philippines, 112 SCRA 573 [1983]).
This case was brought before this Court for the resolution of the
dismissal of the appeal filed by petitioner-appellant from the decision
of the Director of the Philippines Patent Office for being filed out of
time. The normal action to take thereafter, would be to remand this
case to the Court of Appeals for further proceedings. However, in line
with jurisprudence, such time consuming procedure may be properly
dispensed with to resolve the issue (Quisumbing v. Court of Appeals,
122 SCRA 709 [1983]) where there is enough basis to end the basic
controversy between the parties here and now. In the case at bar
dispensing with such procedural steps would not anyway affect
substantially the merits of their respective claims as held in Velasco v.
Court of Appeals, (95 SCRA 621 [1980] cited in Ortigas & Co. Ltd. v.
Ruiz, 148 SCRA [1987] hence the need for this Court to broaden its
inquiry in this case land decide the same on the merits rather than
merely resolve the procedural question raised (Dorado v. Court of
Appeals, 153 SCRA 420 [1987]; De Lima v. Laguna Tayabas Co., 160
SCRA 70 [1988]).
Petitioner contends that it will be damaged by the registration of the
trademark CHARLIE BROWN & DEVICE in favor of private
respondent and that it has a better right to CHARLIE BROWN &
DEVICE since the likeness of CHARLIE BROWN appeared in
periodicals having worldwide distribution and covered by copyright
registration in its name which antedates the certificate of registration
of respondent issued only on September 12, 1979. (Petition, Rollo, p.
21).
Petitioner further stresses that Decision No. 84-83 (TM) promulgated
by the Philippine Patent Office on October 2, 1984 which held that
"the name likeness of CHARLIE BROWN may not provide a cause of
action for the cancellation of a trademark registration," was based in
the conclusion made in the case of "Children's Television Workshop v.
touch of Class" earlier decided by the Director of Patent Office on May
10, 1984. However, when the latter case was appealed to the then
Intermediate Appellate Court, docketed as A.C. G.R. SP No. 03432,
the appellate court reversed the decision of the Director holding said
appealed decision as illegal and contrary to law. this reversal was
affirmed by this Court on August 7, 1985 in G.R. No. 71210 by denying
the petition of respondent Touch of Class.
The Court of Appeals in reversing the Director of Patent's decision in
Touch of Class, Inc. succintly said:
The Patents Office ruled that a trademark, unlike a
label, cannot be copyrighted. The "Cookie Monster" is
not, however, a trademark. It is a character in a TV
series entitled "Sesame Street." It was respondent
which appropriated the "Cookie Monster" as a
trademark, after it has been copyrighted. We hold that
the exclusive right secured by PD 49 to the petitioner
precludes the appropriation of the "Cookie Monster" by
the respondent.
Pertinently, Section 2 of Presidential Decree No. 49, otherwise known
as the "Decree on Intellectual Property", provides:
Section 2. The rights granted by this Decree shall, from
the moment of creation, subsist with respect to any of
the following classes of works:
xxx xxx xxx
(O) Prints, pictorial illustrations, advertising copies,
labels, tags and box wraps. ...
Therefore, since the name "CHARLIE BROWN" and its pictorial
representation were covered by a copyright registration way back in
1950 the same are entitled to protection under PD No. 49.
Aside from its copyright registration, petitioner is also the owner of
several trademark registrations and application for the name and
likeness of "CHARLIE BROWN" which is the duly registered
trademark and copyright of petitioner United Feature Syndicate Inc.
as early as 1957 and additionally also as TV SPECIALS featuring the
"PEANUTS" characters "CHARLIE BROWN" (Memorandum, Rollo p.
97 [211]).
An examination of the records show that the only appreciable defense
of respondent-registrant is embodied in its answer, which reads:
It uses, the trademark "CHARLIE BROWN" &
"DEVICE" on children's wear such as T-shirts,
undershirts, sweaters, brief and sandos, in class 25;
whereas "CHARLIE BROWN" is used only by
petitioner as character, in a pictorial illustration used
in a comic strip appearing in newspapers and
magazines. It has no trademark significance and
therefore respondent-registrant's use of "CHARLIE
BROWN" & "DEVICE" is not in conflict with the
petitioner's use of "CHARLIE BROWN" (Rollo, p. 97
[21]).
It is undeniable from the records that petitioner is the actual owner of
said trademark due to its prior registration with the Patent's Office.
Finally, in La Chemise Lacoste S.A. v. Hon. Oscar Fernandez &
Gobindram Hemandas Sujanani v. Hon. Roberto V. Ongpin, et
al. 129 SCRA 373 [1984]), the Court declared.
In upholding the right of the petitioner to maintain the
present suit before our courts for unfair competition or
infringement of trademarks of a foreign corporation,
we are moreover recognizing our duties and the rights
of foregoing states under the Paris Convention for the
Protection of Industrial Property to which the
Philippines and (France) U.S. are parties. We are
simply interpreting a solemn international
commitment of the Philippines embodied in a
multilateral treaty to which we are a party and which
we entered into because it is in our national interest to
do so.
PREMISES CONSIDERED, the Resolutions of the Court of Appeals
dated September 16, 1985 and October 14, 1986 dismissing
petitioner's appeal are hereby SET ASIDE and Certificate of
Registration no. SR-424 issued to private respondent dated
September 12, 1979 is hereby CANCELLED.
SO ORDERED.
JESSIE G. CHING, petitioner, vs. WILLIAM M. SALINAS, b.) Undetermined quantity of Leaf spring eye bushing for
SR., WILLIAM M. SALINAS, JR., JOSEPHINE L. automobile that are made up of polyvinyl chloride
SALINAS, JENNIFER Y. SALINAS, ALONTO plastic;
SOLAIMAN SALLE, JOHN ERIC I. SALINAS, NOEL M. c.) Undetermined quantity of Vehicle bearing cushion that is
YABUT (Board of Directors and Officers of made up of polyvinyl chloride plastic;
WILAWARE PRODUCT d.) Undetermined quantity of Dies and jigs, patterns and
CORPORATION), respondents. flasks used in the manufacture/fabrication of items a to
DECISION d;
CALLEJO, SR., J.: e.) Evidences of sale which include delivery receipts, invoices
and official receipts.[6]
This petition for review on certiorari assails the Decision[1] and
Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 70411 The RTC granted the application and issued Search Warrant Nos.
affirming the January 3, 2002 and February 14, 2002 Orders [3] of the 01-2401 and 01-2402 for the seizure of the aforecited articles. [7] In the
Regional Trial Court (RTC) of Manila, Branch 1, which quashed and inventory submitted by the NBI agent, it appears that the following
set aside Search Warrant Nos. 01-2401 and 01-2402 granted in favor articles/items were seized based on the search warrants:
of petitioner Jessie G. Ching. Leaf Spring eye bushing

Jessie G. Ching is the owner and general manager of Jeshicris a) Plastic Polypropylene
Manufacturing Co., the maker and manufacturer of a Utility Model, - C190 27 }
described as Leaf Spring Eye Bushing for Automobile made up of - C240 rear 40 }
plastic. - C240 front 41 } BAG 1
b) Polyvinyl Chloride Plastic
On September 4, 2001, Ching and Joseph Yu were issued by the - C190 13 }
National Library Certificates of Copyright Registration and Deposit of c) Vehicle bearing cushion
the said work described therein as Leaf Spring Eye Bushing for - center bearing cushion 11 }
Automobile.[4] Budder for C190 mold 8 }
Diesel Mold
On September 20, 2001, Ching requested the National Bureau of a) Mold for spring eye bushing rear 1 set
Investigation (NBI) for police/investigative assistance for the b) Mold for spring eye bushing front 1 set
apprehension and prosecution of illegal manufacturers, producers c) Mold for spring eye bushing for C190 1 set
and/or distributors of the works.[5] d) Mold for C240 rear 1 piece of the
set
After due investigation, the NBI filed applications for search e) Mold for spring eye bushing for L300 2 sets
warrants in the RTC of Manila against William Salinas, Sr. and the f) Mold for leaf spring eye bushing C190
officers and members of the Board of Directors of Wilaware Product with metal 1 set
Corporation. It was alleged that the respondents therein reproduced g) Mold for vehicle bearing cushion 1 set[8]
and distributed the said models penalized under Sections 177.1 and
177.3 of Republic Act (R.A.) No. 8293. The applications sought the The respondents filed a motion to quash the search warrants on
seizure of the following: the following grounds:
2. The copyright registrations were issued in violation of the
a.) Undetermined quantity of Leaf spring eye bushing for Intellectual Property Code on the ground that:
automobile that are made up of plastic polypropylene; a) the subject matter of the registrations are not artistic
or literary;
 b) the subject matter of the registrations are spare parts
of automobiles meaning there (sic) are original
parts that they are designed to replace. Hence, they
are not original.[9]
The respondents averred that the works covered by the
certificates issued by the National Library are not artistic in nature;
they are considered automotive spare parts and pertain to technology.
They aver that the models are not original, and as such are the proper
subject of a patent, not copyright.[10]
In opposing the motion, the petitioner averred that the court
which issued the search warrants was not the proper forum in which
to articulate the issue of the validity of the copyrights issued to him.
Citing the ruling of the Court in Malaloan v. Court of Appeals,[11] the
petitioner stated that a search warrant is merely a judicial process
designed by the Rules of Court in anticipation of a criminal case. Until
his copyright was nullified in a proper proceeding, he enjoys rights of
a registered owner/holder thereof.
On January 3, 2002, the trial court issued an Order  granting
[12]
the motion, and quashed the search warrant on its finding that there
was no probable cause for its issuance. The court ruled that the work
covered by the certificates issued to the petitioner pertained to
solutions to technical problems, not literary and artistic as provided in
Article 172 of the Intellectual Property Code.
His motion for reconsideration of the order having been denied
by the trial courts Order of February 14, 2002, the petitioner filed a
petition for certiorari in the CA, contending that the RTC had no
jurisdiction to delve into and resolve the validity of the copyright
certificates issued to him by the National Library. He insisted that his
works are covered by Sections 172.1 and 172.2 of the Intellectual
Property Code. The petitioner averred that the copyright certificates
are prima facie evidence of its validity, citing the ruling of the United
States Court of Appeals in Wildlife Express Corporation v. Carol
Wright Sales, Inc.[13] The petitioner asserted that the respondents
failed to adduce evidence to support their motion to quash the search
warrants. The petitioner noted that respondent William Salinas, Jr.
was not being honest, as he was able to secure a similar copyright
registration of a similar product from the National Library on January
14, 2002.
On September 26, 2003, the CA rendered judgment dismissing
the petition on its finding that the RTC did not commit any grave
abuse of its discretion in issuing the assailed order, to wit:
It is settled that preliminarily, there must be a finding that a specific
offense must have been committed to justify the issuance of a search
warrant. In a number of cases decided by the Supreme Court, the
same is explicitly provided, thus:
The probable cause must be in connection with one specific offense,
and the judge must, before issuing the warrant, personally examine in
the form of searching questions and answers, in writing and under
oath, the complainant and any witness he may produce, on facts
personally known to them and attach to the record their sworn
statements together with any affidavit submitted.
In the determination of probable cause, the court must necessarily
resolve whether or not an offense exists to justify the issuance or
quashal of the search warrant.
In the instant case, the petitioner is praying for the reinstatement of
the search warrants issued, but subsequently quashed, for the offense
of Violation of Class Designation of Copyrightable Works under
Section 177.1 in relation to Section 177.3 of Republic Act 8293, when
the objects subject of the same, are patently not copyrightable.
It is worthy to state that the works protected under the Law on
Copyright are: literary or artistic works (Sec. 172) and derivative
works (Sec. 173). The Leaf Spring Eye Bushing and Vehicle Bearing
Cushion fall on neither classification. Accordingly, if, in the first place,
the item subject of the petition is not entitled to be protected by the
law on copyright, how can there be any violation? [14]
The petitioners motion for reconsideration of the said decision
suffered the same fate. The petitioner forthwith filed the present
petition for review on certiorari, contending that the revocation of his
copyright certificates should be raised in a direct action and not in a
search warrant proceeding.
The petitioner posits that even assuming ex argumenti that the
trial court may resolve the validity of his copyright in a proceeding to
quash a search warrant for allegedly infringing items, the RTC
committed a grave abuse of its discretion when it declared that his
works are not copyrightable in the first place. He claims that R.A. No.
8293, otherwise known as the Intellectual Property Code of the
Philippines, which took effect on January 1, 1998, provides in no
uncertain terms that copyright protection automatically attaches to a
work by the sole fact of its creation, irrespective of its mode or form of
expression, as well as of its content, quality or purpose. [15] The law
gives a non-inclusive definition of work as referring to original
intellectual creations in the literary and artistic domain protected
from the moment of their creation; and includes original ornamental
designs or models for articles of manufacture, whether or not
registrable as an industrial design and other works of applied art
under Section 172.1(h) of R.A. No. 8293.
As such, the petitioner insists, notwithstanding the classification
of the works as either literary and/or artistic, the said law, likewise,
encompasses works which may have a bearing on the utility aspect to
which the petitioners utility designs were classified. Moreover,
according to the petitioner, what the Copyright Law protects is the
authors intellectual creation, regardless of whether it is one with
utilitarian functions or incorporated in a useful article produced on an
industrial scale.
The petitioner also maintains that the law does not provide that
the intended use or use in industry of an article eligible for patent bars
or invalidates its registration under the Law on Copyright. The test of
protection for the aesthetic is not beauty and utility, but art for the
copyright and invention of original and ornamental design for design
patents.[16] In like manner, the fact that his utility designs or models
for articles of manufacture have been expressed in the field of
automotive parts, or based on something already in the public domain
does not automatically remove them from the protection of the Law
on Copyright.[17]
The petitioner faults the CA for ignoring Section 218 of R.A. No.
8293 which gives the same presumption to an affidavit executed by an
author who claims copyright ownership of his work.
The petitioner adds that a finding of probable cause to justify the
issuance of a search warrant means merely a reasonable suspicion of
the commission of the offense. It is not equivalent to absolute
certainty or a finding of actual and positive cause. [18] He assists that
the determination of probable cause does not concern the issue of
whether or not the alleged work is copyrightable. He maintains that to
justify a finding of probable cause in the issuance of a search warrant,
it is enough that there exists a reasonable suspicion of the commission
of the offense.
The petitioner contends that he has in his favor the benefit of the
presumption that his copyright is valid; hence, the burden of
overturning this presumption is on the alleged infringers, the
respondents herein. But this burden cannot be carried in a hearing on
a proceeding to quash the search warrants, as the issue therein is
whether there was probable cause for the issuance of the search
warrant. The petitioner concludes that the issue of probable cause
should be resolved without invalidating his copyright.
In their comment on the petition, the respondents aver that the
work of the petitioner is essentially a technical solution to the problem
of wear and tear in automobiles, the substitution of materials, i.e.,
from rubber to plastic matter of polyvinyl chloride, an oil resistant soft
texture plastic material strong enough to endure pressure brought
about by the vibration of the counter bearing and thus brings
bushings. Such work, the respondents assert, is the subject of
copyright under Section 172.1 of R.A. No. 8293. The respondents posit
that a technical solution in any field of human activity which is novel
may be the subject of a patent, and not of a copyright. They insist that
the certificates issued by the National Library are only certifications
that, at a point in time, a certain work was deposited in the said office.
Furthermore, the registration of copyrights does not provide for
automatic protection. Citing Section 218.2(b) of R.A. No. 8293, the
respondents aver that no copyright is said to exist if a party
categorically questions its existence and legality. Moreover, under
Section 2, Rule 7 of the Implementing Rules of R.A. No. 8293, the
registration and deposit of work is not conclusive as to copyright
outlay or the time of copyright or the right of the copyright owner. The
respondents maintain that a copyright exists only when the work is
covered by the protection of R.A. No. 8293.
The petition has no merit.
The RTC had jurisdiction to delve into and resolve the issue
whether the petitioners utility models are copyrightable and, if so,
whether he is the owner of a copyright over the said models. It bears
stressing that upon the filing of the application for search warrant, the
RTC was duty-bound to determine whether probable cause existed, in
accordance with Section 4, Rule 126 of the Rules of Criminal
Procedure:

SEC. 4. Requisite for issuing search warrant. A search warrant shall
not issue but upon probable cause in connection with one specific
offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and, particularly, describing the place to be searched
and the things to be seized.
In Solid Triangle Sales Corporation v. The Sheriff of RTC QC , Br.
93,[19] the Court held that in the determination of probable cause, the
court must necessarily resolve whether or not an offense exists to
justify the issuance of a search warrant or the quashal of one already
issued by the court. Indeed, probable cause is deemed to exist only
where facts and circumstances exist which could lead a reasonably
cautious and prudent man to believe that an offense has been
committed or is being committed. Besides, in Section 3, Rule 126 of
the Rules of Criminal Procedure, a search warrant may be issued for
the search and seizure of personal property (a) subject of the offense;
(b) stolen or embezzled and other proceeds or fruits of the offense; or
(c) used or intended to be used as the means of committing an offense.
The RTC is mandated under the Constitution and Rules of
Criminal Procedure to determine probable cause. The court cannot
abdicate its constitutional obligation by refusing to determine whether
an offense has been committed.[20] The absence of probable cause will
cause the outright nullification of the search warrant. [21]
For the RTC to determine whether the crime for infringement
under R.A. No. 8293 as alleged in an application is committed, the
petitioner-applicant was burdened to prove that (a) respondents
Jessie Ching and Joseph Yu were the owners of copyrighted material;
and (b) the copyrighted material was being copied and distributed by
the respondents. Thus, the ownership of a valid copyright is essential.
[22]
Ownership of copyrighted material is shown by proof of
originality and copyrightability. By originality is meant that the
material was not copied, and evidences at least minimal creativity;
that it was independently created by the author and that it possesses
at least same minimal degree of creativity. [23] Copying is shown by
proof of access to copyrighted material and substantial similarity
between the two works.[24] The applicant must thus demonstrate the
existence and the validity of his copyright because in the absence of
copyright protection, even original creation may be freely copied. [25]
By requesting the NBI to investigate and, if feasible, file an
application for a search warrant for infringement under R.A. No. 8293
against the respondents, the petitioner thereby authorized the RTC (in
resolving the application), to delve into and determine the validity of
the copyright which he claimed he had over the utility models. The
petitioner cannot seek relief from the RTC based on his claim that he
was the copyright owner over the utility models and, at the same time,
repudiate the courts jurisdiction to ascertain the validity of his claim
without running afoul to the doctrine of estoppel.
To discharge his burden, the applicant may present the certificate
of registration covering the work or, in its absence, other evidence.
[26]
 A copyright certificate provides prima facieevidence of originality
which is one element of copyright validity. It constitutes prima
facie evidence of both validity and ownership[27] and the validity of the
facts stated in the certificate.[28] The presumption of validity to a
certificate of copyright registration merely orders the burden of proof.
The applicant should not ordinarily be forced, in the first instance, to
prove all the multiple facts that underline the validity of the copyright
unless the respondent, effectively challenging them, shifts the burden
of doing so to the applicant. [29] Indeed, Section 218.2 of R.A. No. 8293
provides:
218.2. In an action under this Chapter:
(a) Copyright shall be presumed to subsist in the work or other subject
matter to which the action relates if the defendant does not put in
issue the question whether copyright subsists in the work or other
subject matter; and
(b) Where the subsistence of the copyright is established, the plaintiff
shall be presumed to be the owner of the copyright if he claims to be
the owner of the copyright and the defendant does not put in issue the
question of his ownership.
A certificate of registration creates no rebuttable presumption of
copyright validity where other evidence in the record casts doubt on
the question. In such a case, validity will not be presumed.[30]
To discharge his burden of probable cause for the issuance of a
search warrant for violation of R.A. No. 8293, the petitioner-applicant
submitted to the RTC Certificate of Copyright Registration Nos. 2001-
197 and 2001-204 dated September 3, 2001 and September 4, 2001,
respectively, issued by the National Library covering work identified
as Leaf Spring Eye Bushing for Automobile and Vehicle Bearing
Cushion both classified under Section 172.1(h) of R.A. No. 8293, to
wit:
SEC. 172. Literary and Artistic Works. 172.1. Literary and artistic
works, hereinafter referred to as works, are original intellectual
creations in the literary and artistic domain protected from the
moment of their creation and shall include in particular:
...
(h) Original ornamental designs or models for articles of manufacture,
whether or not registrable as an industrial design, and other works of
applied art.
Related to the provision is Section 171.10, which provides that a
work of applied art is an artistic creation with utilitarian functions or
incorporated in a useful article, whether made by hand or produced
on an industrial scale.
But, as gleaned from the specifications appended to the
application for a copyright certificate filed by the petitioner, the said
Leaf Spring Eye Bushing for Automobile is merely a utility model
described as comprising a generally cylindrical body having a co-axial
bore that is centrally located and provided with a perpendicular flange
on one of its ends and a cylindrical metal jacket surrounding the
peripheral walls of said body, with the bushing made of plastic that is
either polyvinyl chloride or polypropylene. [31] Likewise, the Vehicle
Bearing Cushion is illustrated as a bearing cushion comprising a
generally semi-circular body having a central hole to secure a
conventional bearing and a plurality of ridges provided therefore, with
said cushion bearing being made of the same plastic materials.
[32]
 Plainly, these are not literary or artistic works. They are not
intellectual creations in the literary and artistic domain, or works of
applied art. They are certainly not ornamental designs or one having
decorative quality or value.
It bears stressing that the focus of copyright is the usefulness of
the artistic design, and not its marketability. The central inquiry is
whether the article is a work of art. [33] Works for applied art include all
original pictorials, graphics, and sculptural works that are intended to
be or have been embodied in useful article regardless of factors such
as mass production, commercial exploitation, and the potential
availability of design patent protection.[34]
As gleaned from the description of the models and their
objectives, these articles are useful articles which are defined as one
having an intrinsic utilitarian function that is not merely to portray
the appearance of the article or to convey information. Indeed, while
works of applied art, original intellectual, literary and artistic works
are copyrightable, useful articles and works of industrial design are
not.[35] A useful article may be copyrightable only if and only to the
extent that such design incorporates pictorial, graphic, or sculptural
features that can be identified separately from, and are capable of
existing independently of the utilitarian aspects of the article.
We agree with the contention of the petitioner (citing Section
171.10 of R.A. No. 8293), that the authors intellectual creation,
regardless of whether it is a creation with utilitarian functions or
incorporated in a useful article produced on an industrial scale, is
protected by copyright law. However, the law refers to a work of
applied art which is an artistic creation. It bears stressing that there is
no copyright protection for works of applied art or industrial design
which have aesthetic or artistic features that cannot be identified
separately from the utilitarian aspects of the article. [36] Functional
components of useful articles, no matter how artistically designed,
have generally been denied copyright protection unless they are
separable from the useful article.[37]
In this case, the petitioners models are not works of applied art,
nor artistic works. They are utility models, useful articles, albeit with
no artistic design or value. Thus, the petitioner described the utility
model as follows:
LEAF SPRING EYE BUSHING FOR AUTOMOBILE
Known bushings inserted to leaf-spring eye to hold leaf-springs of
automobile are made of hard rubber. These rubber bushings after a
time, upon subjecting them to so much or intermittent pressure would
eventually wore (sic) out that would cause the wobbling of the leaf
spring.
The primary object of this utility model, therefore, is to provide a leaf-
spring eye bushing for automobile that is made up of plastic.
Another object of this utility model is to provide a leaf-spring eye
bushing for automobiles made of polyvinyl chloride, an oil resistant
soft texture plastic or polypropylene, a hard plastic, yet both causes
cushion to the leaf spring, yet strong enough to endure pressure
brought about by the up and down movement of said leaf spring.
Yet, an object of this utility model is to provide a leaf-spring eye
bushing for automobiles that has a much longer life span than the
rubber bushings.
Still an object of this utility model is to provide a leaf-spring eye
bushing for automobiles that has a very simple construction and can
be made using simple and ordinary molding equipment.
A further object of this utility model is to provide a leaf-spring eye
bushing for automobile that is supplied with a metal jacket to
reinforce the plastic eye bushing when in engaged with the steel
material of the leaf spring.
These and other objects and advantages will come to view and be
understood upon a reading of the detailed description when taken in
conjunction with the accompanying drawings.
Figure 1 is an exploded perspective of a leaf-spring eye bushing
according to the present utility model;
Figure 2 is a sectional view taken along line 2-2 of Fig. 1;
Figure 3 is a longitudinal sectional view of another embodiment of
this utility model;
Figure 4 is a perspective view of a third embodiment; and
Figure 5 is a sectional view thereof.
Referring now to the several views of the drawings wherein like
reference numerals designated same parts throughout, there is shown
a utility model for a leaf-spring eye bushing for automobile generally
designated as reference numeral 10.
Said leaf-spring eye bushing 10 comprises a generally cylindrical body
11 having a co-axial bore 12 centrally provided thereof.
As shown in Figs. 1 and 2, said leaf-spring eye bushing 10 is provided
with a perpendicular flange 13 on one of its ends and a cylindrical
metal jacket 14 surrounding the peripheral walls 15 of said body 11.
When said leaf-spring bushing 10 is installed, the metal jacket 14 acts
with the leaf-spring eye (not shown), which is also made of steel or
cast steel. In effect, the bushing 10 will not be directly in contact with
steel, but rather the metal jacket, making the life of the bushing 10
longer than those without the metal jacket.
In Figure 2, the bushing 10 as shown is made of plastic, preferably
polyvinyl chloride, an oil resistant soft texture plastic or a hard
polypropylene plastic, both are capable to endure the pressure applied
thereto, and, in effect, would lengthen the life and replacement
therefor.
Figure 3, on the other hand, shows the walls 16 of the co-axial bore 12
of said bushing 10 is insertably provided with a steel tube 17 to
reinforce the inner portion thereof. This steel tube 17 accommodates
or engages with the leaf-spring bolt (not shown) connecting the leaf
spring and the automobiles chassis.
Figures 4 and 5 show another embodiment wherein the leaf eye
bushing 10 is elongated and cylindrical as to its construction. Said
another embodiment is also made of polypropylene or polyvinyl
chloride plastic material. The steel tube 17 and metal jacket 14 may
also be applied to this embodiment as an option thereof.[38]
VEHICLE BEARING CUSHION
Known bearing cushions inserted to bearing housings for vehicle
propeller shafts are made of hard rubber. These rubber bushings after
a time, upon subjecting them to so much or intermittent pressure
would eventually be worn out that would cause the wobbling of the
center bearing.
The primary object of this utility model therefore is to provide a
vehicle-bearing cushion that is made up of plastic.
Another object of this utility model is to provide a vehicle bearing
cushion made of polyvinyl chloride, an oil resistant soft texture plastic
material which causes cushion to the propellers center bearing, yet
strong enough to endure pressure brought about by the vibration of
the center bearing.
Yet, an object of this utility model is to provide a vehicle-bearing
cushion that has a much longer life span than rubber bushings.
Still an object of this utility model is to provide a vehicle bearing
cushion that has a very simple construction and can be made using
simple and ordinary molding equipment.
These and other objects and advantages will come to view and be
understood upon a reading of the detailed description when taken in
conjunction with the accompanying drawings.
Figure 1 is a perspective view of the present utility model for a vehicle-
bearing cushion; and

Figure 2 is a sectional view thereof.
Referring now to the several views of the drawing, wherein like
reference numeral designate same parts throughout, there is shown a
utility model for a vehicle-bearing cushion generally designated as
reference numeral 10.
Said bearing cushion 10 comprises of a generally semi-circular body
11, having central hole 12 to house a conventional bearing (not
shown). As shown in Figure 1, said body 11 is provided with a plurality
of ridges 13 which serves reinforcing means thereof.
The subject bearing cushion 10 is made of polyvinyl chloride, a soft
texture oil and chemical resistant plastic material which is strong,
durable and capable of enduring severe pressure from the center
bearing brought about by the rotating movement of the propeller shaft
of the vehicle.[39]
A utility model is a technical solution to a problem in any field of
human activity which is new and industrially applicable. It may be, or
may relate to, a product, or process, or an improvement of any of the
aforesaid.[40] Essentially, a utility model refers to an invention in the
mechanical field. This is the reason why its object is sometimes
described as a device or useful object.[41] A utility model varies from an
invention, for which a patent for invention is, likewise, available, on at
least three aspects: first, the requisite of inventive step [42] in a patent
for invention is not required; second, the maximum term of protection
is only seven years[43] compared to a patent which is twenty years,
[44]
 both reckoned from the date of the application; and third, the
provisions on utility model dispense with its substantive
examination[45] and prefer for a less complicated system.
Being plain automotive spare parts that must conform to the
original structural design of the components they seek to replace, the
Leaf Spring Eye Bushing and Vehicle Bearing Cushion are not
ornamental. They lack the decorative quality or value that must
characterize authentic works of applied art. They are not even artistic
creations with incidental utilitarian functions or works incorporated
in a useful article. In actuality, the personal properties described in
the search warrants are mechanical works, the principal function of
which is utility sansany aesthetic embellishment.
Neither are we to regard the Leaf Spring Eye Bushing and Vehicle
Bearing Cushion as included in the catch-all phrase other literary,
scholarly, scientific and artistic works in Section 172.1(a) of R.A. No.
8293. Applying the principle of ejusdem generis which states that
where a statute describes things of a particular class or kind
accompanied by words of a generic character, the generic word will
usually be limited to things of a similar nature with those particularly
enumerated, unless there be something in the context of the state
which would repel such inference,[46] the Leaf Spring Eye Bushing and
Vehicle Bearing Cushion are not copyrightable, being not of the same
kind and nature as the works enumerated in Section 172 of R.A. No.
8293.
No copyright granted by law can be said to arise in favor of the
petitioner despite the issuance of the certificates of copyright
registration and the deposit of the Leaf Spring Eye Bushing and
Vehicle Bearing Cushion. Indeed, in Joaquin, Jr. v.
Drilon[47] and Pearl & Dean (Phil.), Incorporated v. Shoemart,
Incorporated,[48] the Court ruled that:
Copyright, in the strict sense of the term, is purely a statutory right. It
is a new or independent right granted by the statute, and not simply a
pre-existing right regulated by it. Being a statutory grant, the rights
are only such as the statute confers, and may be obtained and enjoyed
only with respect to the subjects and by the persons, and on terms and
conditions specified in the statute. Accordingly, it can cover only the
works falling within the statutory enumeration or description.
That the works of the petitioner may be the proper subject of a
patent does not entitle him to the issuance of a search warrant for
violation of copyright laws. In Kho v. Court of Appeals[49] and Pearl &
Dean (Phil.), Incorporated v. Shoemart, Incorporated,[50] the Court
ruled that these copyright and patent rights are completely distinct
and separate from one another, and the protection afforded by one
cannot be used interchangeably to cover items or works
that exclusively pertain to the others. The Court expounded further,
thus:
Trademark, copyright and patents are different intellectual property
rights that cannot be interchanged with one another. A trademark is
any visible sign capable of distinguishing the goods (trademark) or
services (service mark) of an enterprise and shall include a stamped or
marked container of goods. In relation thereto, a trade name means
the name or designation identifying or distinguishing an enterprise.
Meanwhile, the scope of a copyright is confined to literary and artistic
works which are original intellectual creations in the literary and
artistic domain protected from the moment of their creation.
Patentable inventions, on the other hand, refer to any technical
solution of a problem in any field of human activity which is new,
involves an inventive step and is industrially applicable.
[I]f the sole intrinsic function of an article is its utility, the fact that the
work is unique and attractively shaped will not qualify it as a work of
art.
In this case, the bushing and cushion are not works of art. They
are, as the petitioner himself admitted, utility models which may be
the subject of a patent.

The petitioner cannot find solace in the ruling of the United IN LIGHT OF ALL THE FOREGOING, the instant petition is
States Supreme Court in Mazer v. Stein[51] to buttress his petition. In hereby DENIED for lack of merit. The assailed Decision and
that case, the artifacts involved in that case were statuettes of dancing Resolution of the Court of Appeals in CA-G.R. SP No. 70411 are
male and female figures made of semi-vitreous china. The controversy AFFIRMED. Search Warrant Nos. 01-2401 and 01-2402 issued on
therein centered on the fact that although copyrighted as works of art, October 15, 2001 are ANNULLED AND SET ASIDE. Costs against the
the statuettes were intended for use and used as bases for table lamps, petitioner.
with electric wiring, sockets and lampshades attached. The issue
raised was whether the statuettes were copyright protected in the SO ORDERED.
United States, considering that the copyright applicant intended
primarily to use them as lamp bases to be made and sold in quantity,
and carried such intentions into effect. At that time, the Copyright
Office interpreted the 1909 Copyright Act to cover works of artistic
craftsmanship insofar as their form, but not the utilitarian aspects,
were concerned. After reviewing the history and intent of the US
Congress on its copyright legislation and the interpretation of the
copyright office, the US Supreme Court declared that the statuettes
were held copyrightable works of art or models or designs for works of
art. The High Court ruled that:
Works of art (Class G) (a) In General. This class includes works of
artistic craftsmanship, in so far as their form but not their mechanical
or utilitarian aspects are concerned, such as artistic jewelry, enamels,
glassware, and tapestries, as well as all works belonging to the fine
arts, such as paintings, drawings and sculpture.
So we have a contemporaneous and long-continued construction of
the statutes by the agency charged to administer them that would
allow the registration of such a statuette as is in question here. [52]

The High Court went on to state that [t]he dichotomy of

protection for the aesthetic is not beauty and utility but art for the
copyright and the invention of original and ornamental design for
design patents. Significantly, the copyright office promulgated a rule
to implement Mazer to wit: