Decisions of director of patents : Department of Commerce and Industry : Philippines Patent Office Manila

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Part of The Lawyers Journal

Title: Decisions of director of patents : Department of Commerce and Industry : Philippines Patent Office Manila
Language: English
Source: The Lawyers Journal XIV (5) May 31, 1949
Year: 1949
Subject: Patent laws and legislation--Philippines; Patent laws and legislation--Philippines--Cases
Rights
Abstract: Decisions of the Director of Patents in Trademarks cases
Series of 1949
No. I
Application No. 985
(Bureau of Commerce)
Filed September 30, 1946
EX PARTE JOSE TAN CHAU
Jose Tan Chau, Petitioner
Petitioner pro se
PETITION FOR RECONSIDERATION
Fulltext: DECISIONS OF THE DIRECTOR OF PA TENTS DEPARTMENT OF COMMERCE AND INDUSTRY PHILIPPINES PATENT OFFICE MANILA DECISIONS OF THE DIRECTOR OF PATENTS IN TRADEMARK CASES Series of 1949 No. I Appliotion No. 985 (Bureau of Commerce) Filed Septcffibcr 30, 1946 EX PARTE JOSE TAN CHAU Jose Tan Chau, Petitioner Petitioner pro se PETITION FOR RECONSIDERATION DECIS I ON This is a petition of JOSE TAN CH Al!, a citizen of the Republic of China, domiciled in the Philippines, and doing business :it Badeo 4, MHbbon, in the Province of Rizal, praying th:it the ciccision of r.he Director of Commerce, denying the registration of his trademark UBER TY, be set aside and that his application be given due course in the Patent Office. The records of this case show that the petitioner filed with the Director of C~m merce on Septembet 30, 1946, an application for the registration ui1dcr Act No. 666 of the trndemark UBER TY used on bago011g and patis, which are articles of salty food in general use, derived from small fish. Without giving any definite d;1te, the petitioner a\leged in his applic:ation that he had employed the trademark "since America11 liberation" (meaning liberation of Manila by Gen. MacArthur's forces) . He further alleged that the trademark was applied to the "bottles or tins cont:iining the goods." The records further show that, in :i brief one-paragr:iph decision' rendered April 2}, 1947, the Director of Commerce rejected the application - "on the ground tlu1 uid tradcm.rk ;, identic~l ... ·ith the tradem>rk LIBERTY for edible oil, hrd, m•rgarinc, belonging to tbr su mr rluss cc, rcgiHcrcd in thi~ Office in fn-or of T>n Kh~k Chiok. Ill T. Pinpin, this City, on September l), 1946, No. Republic 1)8. Use cl.imcd definitely ';ince June 1, 1941.'" The records di~close d1:n the application of Tan Khek Chiok st:1ted that his trademark LIBERTY was applied to "tins, bottles or other containers containing the goods." The records also disclose that on May }, 1947, the applicant filed a motion for reconsideration, upon which the Director of Commerce was unable to act in view of the transfer a shore time thcreafrcr of the' func266 tion of tr;1Jemark registraLion from him to the Director of Patents. , The provisions of Act No. 666 upon Lhc authority of which the Director of Commerce refused registration of the petitioner's tr<>.demark UBER TY read as follows; "Sec. ll. • • • no ollcged tr•dcmark ~ ~ • ,],.ll be rei;:istercd • • • which is id~ntiol ... ,ith J rcgis· urcd or known uadenurk owned by another and appropriued to the Hmc d us of merclund;>c • " • " This provision is similar to Sec. 5 of the U.S. Trademark Act of 1905, which was in force until the enactment of the Trademark Act of 1946, which is popularly referred to as the Lanham Act. It reads :is follows: " • "• Prol'iderl, That trademuks which .re ide"tkol with a registered or known tndenlJrk owned and in use by another and oppropriaccd to mcrch~n disc of the umc des.:ripti\'C propcrtie1 • • • slul! notbcregii1cred." As interpreted by U.S. courts, the phrase ;:~;~?.a1~:saen5o~'g:d:a~e t~:sc;~~!v:l~s:~.~ Philadelphia Inquirer Co. v. Coe, Comm. of Patents, 55 USPQ 4}5. The phrase "the same class of merchandise," as used in Sec. I} of Ace No. 666, and "goods of the same descriptive properties," as used in Sec. 5 of the U.S. Act of 1905, h:ive, therefore, the same signification. As the trademark sought to lie registered and the one already·registcred arc admittedly identical, the only question before the Director of Commerce was whether bago011g and patis on which petitioner's trademark is used, and edible oil, lard, and margarine on which the registered trademark is employed, belong to the samr class of mcrchal/(lise or, using the equivalent phrase of the U.S. Act of 1905, whether they arc mrrchamlisr of the same dt"Scrijlfivc J1roprr· tit·s. If they do not belong to the same class, the petitioner's trademark is registrable under the cited section I } of Act No. 666, and the Director of Commerce was wrong in refusing it registration. But, if they do belong to the same class, the said section prohibits its registration, and the Director of Commerce was right in refusing registration. United St:i.tes courts have set up a number of tests b}' which the question whether or not two items of merchandise arc of the same descriptive properties (belong to the same class) ma}' be determined. lt is not necessary that the items under consideration pass all the tests, or a majority of them, in order to be adjudged to belong to the same class. These arc the tests. 1f the question in each case is answerable in the affirmative, the goods involved arc considered to be of the same descriptive properties {the same class). I. Can the two items be pot under a group C•Pablc of general definition, ~uch as groceries, cmnec.l goods, men's furnishings? Check-Ne.I Coffee Co. "· H .11 Dick Mfg. Co., 40 F (2) 106: Oppenheim, Oberndorf l!i. Co. \'. Pre1idc11t Suspender Co., j f ( 2) 88; In re lndcrricdcn C•nning Co., 277 Fed. 613. 2. Arc the t ... •o items u~d for the ume generJI purpose, as baking soda and b.king powder? Layton Pure FO<J<I v. Church and D ... ·igh1 Co., 182 Fed. lf; Emerson Electric v. Emerson Radio l!i. Phonogr>ph Corp., 90 F(2) HI. 3. Arc the ile1ns cap•blc of conjoim u•c, .s a shirt and a collar button for a shin? Clueu. l'e•body &. Co. v. Har1ogcnsis, 41 F (2) 9-4; Rmenberg Bros. v. Elliot 7 F(2) jl62. -4. Arc the items wld in the ume stores 10 1hc nmc class of c_unomeri? Cluett, Pc.body 6: Cn. , .. Hortogensu; ~osenberg Bros. v. Elliot, 1upr.1. f. ~re the items marketed by the ume method, as "' barrel•. boxes, cartons, bottles, OT tins? Cucker Jack Co. \', Bla11ton Citrus, 81 F(2) H). 6. Have the items ~en manuf.nured in the paS! hy the_ iamc m•nufacturer? Bccdi-Nut Packing Lorillard Co., 7 f(2) 967; Pittsburgh Brewery v. Ru~n 3 f (2) H2. 7. Ha\'e the items the umc acti\'c dcmcnt or ingredient? Layton Pure Food v. Church 6: Dwight, supra; B. F. GO<J<lrich Co. v. Closgord Wardro~ Co., )7 F(2) 4)6. 8. Arc the items monufactorcd from th~ nme r.w materiof? Kushner 6: Gillm•n v. Mayflower Worsted, ll F(2) 462; Ralston Purina v. Saniwu P•~r, 26 f (2) 941; Dcn1·er G•s &. Electric 1·. Alex>ndcr Lumber Co., 269 Fed. 819. Petitioner's bagoong and patis and the goods of the owner of the registered trademark---<:diblc oil, lard and margarine~long to the ume group op•blc of a genrul definition-groceries. b. arc capoble of conjoint u•c-PilfiJ rnd bagoo11J: ~nd cd1bk oil or lard arc often mi~cd together "' the preparnion of di~hcs for the dinner t•b!c. •re sold in the same ~tores to the umc customer!. d. are marketed by 1he tame method-retoilcd in bottles or tin1. By one-half of the tests, petitioner's goods and the goods of t he owner of the registered trademark arc merchandise of the same descriptive properties .:>r, in the words of the cited Sec. I} of Act No. 666, merchandise of the same class. T his being the case, I am of the opinion th:it the Director of Commerce did not err in refusing registration to petitioner's trademark. There is a rule in trademark law :ind practice that all doubts are resolved against the newcomer. "The reJSOn for this (rule) is e, ,, If that the field from which a person may select a trademark is practically unlimited, and hence there is no excuse for him impinging upon, or even closely approaching the mark of his business rival '~ * "· (William Waltke & Co. v. Geo. Schaffer & Co., 263 fed 650). So that, if it lie urged that tl1e classification of bago011g and patis and of edible oil, lard and margarine in the same class is Jt best doubtful, the decision of the Director of Commerce would still be correct, for he had resolved the doubt against the petitioner, who is the newcomer. His decision is, therefofe, affirmed. In this connection, it is interesting to note the following decision oft.he U.S. Commissioner of Patents rendered on April 9, 1947, M:i}' 31, 1949 interpreting the above cited Sec. 5 of rhe U.S. Act of 1905: "This is •n •ppt•l from the refuul of the Ex•miner of Tr•de l>brks 10 rcgi>ltr the notation 'PINE TREE' u • rude mark for 'nuur•I bulk Amerk•n Cheeu.' The •ppliution W•S rejected in view of prior registution of the umc mark for c.nned vegeubks •nd nrdincs. " In• cuefully prcp•rcd and elaborate brief, a]lplic•nt preunu the •rgument th•t likelihood of confusion is the 'only 3cccpt3ble 1en' in d e r~rn1iniug whether goods possen the tome dc•criptive propl'rties; and th•t since confusion is here unlihly, rhc propoRd rcgiscruion should be gr.med. But, while such orgument might once hH'C been pcrsu•>il'c. it comes 100 Inc. For both the Court of CustQms •nd l'•ttnt Appuls •nd the Court Qf Appc•ls for the Diurict Qf Columbia arc committed to the rule tlut identical marks nuy nQt be registered for merclnn<lise Qf the umc cl:an, reg.rdkss Qf confusiQn. In re Laskin Brothers, Inc., )2 C.C.P.A. 820, 146 F. 2d )QS (6-t USPQ 22!); Philadelphia Inquirer Co. v Coe, 77 App. D.C. )~, IH F. 2d 381 (n USPQ 4H). And th•t cheese •nd unned goods •re bro•dly of the 10me de«.:ripti•·c propcr1ie1, there is no longer room for doubt. W.B. Roddenbcry Co. v. Kalich (C.C.P.A.), 118 F. 2d !S9, 72 USPQ 1)8. "The decision is affirmed." E~ pute Lubs ChceR Co., 73 USPQ 8 L The foregoi ng decision shows chat the law of the United Sures under the Act of 1905, and the law of the Philippines under Act No. 666 are che same. In both cases, when the mark sought to be registered and the already registered trademark are identical, the only inquiry required to be made is, Do the goods, on which the two identical trademarks arc used, belong to the same class? If the inquiry shows that they belong to the same class, then the mark sought to be registered is refused, Any actual difference between the goods of the applicant and the merchandise of the registrant and any consideration that this difference may not actt1ally cause confusion and deceive the purch:i.sers as to the origin of the applicant's goods, arc imm:i.terial. If the goods :i.re found to be of the same class, che law, in both countries, simply prernmes that confusion and deception of the purchasers will follow, and the trademark of the newcomer is refused. The present trademark law has changed this method of approach to the problem. For comparative purpcses I quote in full Sec. 13 of Act No. 666 :ind the corresponding provision of Republic Act No. 166, which is Sec. 4 (d): ACT 666 "SEC. 13. The time of the receipt of '"Y such 2pplicnion 1hall be noted and u corded. But no alleged tradc-11nrk or tr>dc-n2mc •lull be rcgi1tcrcd which is merely the n2me, quality, or description of the muchandiR upon which it ;, to be used or the geographical ploce of its product ion or origin, Qr which is identinl with 3 rcgistcHd Qr known tr2dcmark owned by 3nother >nd approprilted to the umc dau of much•ndi1e, or which so ncnly reumblcs ano1hcr person's bwfu! trldc-nurk or tudc-namc .s to be likely to cause confusion or mistake in the mind of the public, or to dcccil'e purchaRu. In an application for regis1ra1ion the Director of the Buruu of Commerce •nd lnduury shall decide the presumptin lawfulntn of claim IQ the alleged tudemark. (A> a.,,r.,,fcd by Act No. 1407, sec, J{b), a11,/ 1JJQ1fjfit1I by Ari No. 2721.)" May 31, 1949 REPUBLIC ACT 166 ··sF.C. 4. Rrgillrafio" of tradc-111arlu, 1r~11r "~"' c1, a,.J Jtrdcc-111arlu.-Thc Qwner of a tradeni.rk, rude-name or st'rvicc-mHk used to diHinguish hi1 goods, business or services from the goods, bu~i ne!I or 1ervices of others shall lnvc the right to regisier thcume, un\essi1: "(d) Comins of or comprises a nurk or tndenamc which so resembles a m•rk or tradt-n•mc registered in 1hc Philippines or a mark or trade-umc prcviomlyuscdin1hcPhilippincsby3nothcrandnot abandoned, JS to be likely, when applied to Qr u•ed in connection wi1h the good1, business or servic~ of rhe lpplicant, to CJUS<' confu1ion or mistake or to deceive purchasers;" The foregoing provision of Republic Act No. 166 was taken from Sec. 2 of the U.S. Trademark Act of 1946 (Lanham Act), which replaced .t he Act of 1905. It reads as follows: "Sec. 2. No tudemHk by which 1he good1 of the applicont m~y be diuinguishcd from the goods of otherJ shall be refuS<'d registration on the principal register on aocount ofi1snatureunlcss it"(d) Consists of or compri1c~ a mark which so re<embles a nurk registered in 1he Patent Office or a muk or tndcnamc.prcviou~ly uud in the United Stues by •nother and nQt .bandoned, as 10 be likely, when applied to the goods of the applicant, to cause confusion or mi.cake or to deceive purchasers: ••• " Tt will be seen th:i.t the new trademark law (Sec. 4(d) ) omits all reference to identical trademarks and to the phrase "the same class of merchandise" which :ire employed in Act No. 666. T he new law simply provides rhat, if the mark sought to be registered is so similar co anorhei's trademark that, when used on the applicant's goods, it would be likely to cause confusion and deception among the buyers of such goods, its registration shall be refused. Bec:iuse of the omission of the phrase "the same class of merchandise," the inquiry in the new Act, in the case of identical marks, has shifted from " Do the goods of the applicant and those of the owner of the registered trademark belong to the same class of merchandise?" to "Will the concurrent use of the same trademark by the applicant and by the owner of the registered trademark likely to cause confusion and to deceive the buyers, so that they would think the applicant's goods originated from the owner of the registered tradC'mark ?" In determining whether such confusion and deception as to the origin of the applicant's goods are likely to take place, the nature of the trademark Used is taken into account. In cases of chis kind, U.S. courts have recognized two classes of trademarks( a) the fanciful, or arbitrary, or arbitrarily coined trademarks, which they term "strong marks"; and (b) marks consisting of common, ordinary, and well known words, which they denominate "weak nurks." The courts believe that the liability to confusion as to the origin of the goods of the newc-offier in the field is greater when the mark of the first user is fanciful and arbitrary, and less when the first user's mark consists THE LA WYERS JOURNAL Decisions of the Director of Patents of common, ordinary word. Tn suits for infringement the courts have accorded greater procection to "strong marks" than to "weak marks." To put it in another way, the courts have been willing to concede to the first user of a "strong mark" a wider range of goods upon which he ma}' place his mark to the exclusion of others. To the first user of a "weak mark" they have been inclinCd to give only a limited scope. This is especially true when the "weak mark" is being used by a multiplicity of traders for various articles. In such cases, the courts believe that the likelihood of confusion as to the origin of the goods of each trader using the mark is insignificant, and they have usually restricted trademark protection for each tradC'r to rhe specific goods which each actually manufactures and sells. France Milling v, Washburn-Crosby Co., 7F(2) 304; Pabst Brewing v. Decatur Brewing, 284 Fed, 110; Anheuser-Busch v. Budweiser Malt Products, 295 Fed. J06. "To u~e anothu l'icw of the matter, the degree of cxclus•l'cncu of appropriation accorded to 1he originator of 2 trade-name ofttn varies with the kind Qf name he originate1. If the name or mark be crulr arbitrary, strange, and fanciful, it;, more 1pecnlly and peculiarly significa11t ond suggestive of one man's goods, than when it is frequently used by m•ny and in mony differing kinds of business. Of this 'Kodak• is• famous exomple, • nd the English courts have prevented Qne from puuing forth Ko<l.k bkydes, at the suit of 1he originator of the name for a toully different article. Eiseman "· Kodak Cycle Co., H R.P.C. !Of; cf. Re Dunn 's TudcMark, 7 R.P.C. 311, and Dunlop v. Dunlop, 16 R. P.C. 12. In this court the ume influence is S<'en in Aunt Jemima Mill. Co. v. Rigney, 247 F. -t07, H9 C.C.A. 46 1, LR.A. 19!8C, 1039, where th• abovclineofcasesisquotedandrcliedon. "The phr>se 'Gold Medal' is distinctly not in the nmedassoforiginal, arbitrary, or fanciful words •s 'Kodak and 'Aunt Jcmim•'· It is a J.udaiory phrlsc, suggestive of meri t, rccQgniud by some organintion of 2uthority awarding 3 prize. It is Qn[y ol!ied 10 some pnticular busiMss or person by insistent, persistent 2dvcrtising. Washburn'.s flour lus been so •dl'trtiRd, and the proof is ample that publicity efforts have bc>rn fruit, so that Gold Medal flour means among purchasers Wa~hburn's flour. Yet it must always be remembered that there is nothing original about the name per se; it is cucdy like the phrase 'Blue Ribbon', and has been 3< extensively and variously applied. One who devises a mw, Huns:c, 'cuchlng' word to describe his wares nuy and often has by timely suit prennted otherJ from taking hi• word Qr SN of words to gild the repute of even wholly different goods (cases supu); but one who ukeJ a phrase which is the CQmn1onpbcc of sclfpnise like' 'Blue Ribbon• or 'Gold Med.I' mu•t bc coment with that 1~dal field which he hbcls with so undininctive a name. Of this Pab11, ~tc., CQ. v. Decatur, etc., Co. (C.C.A.) 284 F. !JO; and Anheuser, CIC., Co. v. Budweiser, ttc., Co. (C.C.A.) 2~l F. J06, constitute 2 perfect illustn1ion. fo the fine decision Blue Ribbon was restricted to the single product with which phintiff had associated it, while in 1he 5econd Budweiser was given a wider sphere of influmce. Jn the present case W,.hburn has made known by advertising GQ!d Medal not a line of products, nor any product of• vuied businen. but OM scpuate. well-known commodity, pure 11·heJt flour, 2nd with 1h•t he must bc content. "Result is: Washburn, by penistcnt and pushing use of a 11·ell-known and nondininctivc name has Qn (Co11ti1111ed 011 J11Ige :Z69) 267 JOSE ABAD SANTOS: AN APOTHEOSIS The selfish principle, that infirmity too of fen of great as well as of little minds, seemed never lo have reached him. It wi:is e11lire/y incompatible with the purify of his lasfr a/U/ tbe grandeur of his ambition. Ei·erything appeared to be al once exli11g11ishr1 /, when U came i11 competilio11 with his dwotio11 lo his country's welfare and glory. He was a 1110s/ failh/111 frir11d to the cause of civil liberty thro11gb011t tbe world, but he was a stilf greater friend lo truth am/ j1Hlice, - CHANCELLOR KENT speaking of Alrxandn Hamilton. Jose Ab3d Santos w:is a victim of a wanton war, of pitiless destruction. Like rhc m:iny other victims, he died in the service of his country. Unlike most of them, however, he chose his manner of dying. And unlike most of them, he could h:ive lived had he wished to. But he preferred to die; his de:ith has now become one of the glorious epics of our age. At the outbre:ik of the war, Jose Abad Santos was an Associate Justice of the Su· preme Court; he had been coniinuously serv· ing in that capacity since his appointment on June 18, 1932, interrupted only when he was drafted by President Quezon :is Secre· tary of Justice frop1 December 6, 1938 to M:iy 23, 1941. On December 24, 1941, he was appointed Chief Justice. Concurrent· ly, he perfo'rmed all the functions pertaining ro the Dep;ntment of justice, pursuant to Executive Order No. 396, issued on the s:ime date of his :ippointment. fn accor&111ce with the said order which reorganized the Executive Department of the Common· wealth, Chief Justice Abad Santos w;is also design:ited acting Secretary of Finance, Agriculture, and Commerce. President Que. zon later took him to Corregidor with Vice· President Osmefi.:i, General Basilio Valdes, Major Manuel Nieto, . and Father Pacifico Oniz. While there, Abad Santos assisted President Quezon :ind the Commonwealth officials with him in disposing of and SC· curing the funds of the Government that were deposited in the vault in Corregidor. At the inauguration of President Quezon for his second term on December 30, 1941 , Chief Justice Abad Santos administered to him in Corregidor the oath of office. To· gether with Quezon and his party, he stayed in Malinta Tunnel until February 22, 1942, when he left with them by submarine for the Visayas, arriving in Occidental Negros two days later. The presidential party shuttled from place to place as :i precaution· ary pressure, sojourning first at Talisay in the home of Governor Lizares, and from there to the Del Rosario hacienda. Then 268 ll)' ABRAHAM F. SARMIENTO they moved to a place called Buenos Aires and later to the government sugar mill at Binalbagan. Cognizant of the risk and difficulty of moving in a big group, the party split two ways, the Chief Justice staying most of the while with Vice.President Osmeila. Jose Abad Santos was in bad health :u the rime. He was suffering from asthma. Ne· verthcless, although physically unfit for strenuous duty, he did not relax in his work. He continued indefatigably to discharge the duties of his triple position, i.e., Chief Jus· rice, Secretary of Justice, and Secretary of Finance, Agriculture, and Commerce over the unoccupied territory. The departure of President Quezon for the United States via Australia in the latter part of March, 1942, multiplied fiot only the tasks of Abad San· tos but also the dangers to which he was exposed. The President offered Abad Santos the choice to go with hjm or to remain in the Philippines. Indeed, the thought of America with its promise of haven at t he time of great danger could h:ive enticed the mind of an ordinary man. But Jose Abad Santos was not the common run of men. He told President Quezon; " [ prefer to re· main, c3rry on my work here, and stay with my family." There has been !f!UCh controversy as to who was appointed by President Quezon ro represent him in the Philippines. During the occupation, not a few designing men presumptuously claimed the honor. Presi· dent Quezon is dead and his lips are for. ever closed. N onetheless, he wrote a letter dated f\.brch 17, 1942, addressed to Chief Justice Abad Santos. The letter settles the question and belies the cbims of opponun· ists. Jr reads in full: MHc h 17, lH! M y dclr Chief J unicc S3nt0" In oddi1 io11 10 your dutl<'• •~Ch ief J unicc 3nd •Cl - ing Secrc13ry of Fi11•nct, Agrk ulturt, 3nd Commerce, I hereby designue you u m y delegate with powor co • Cl on oil matters of government "'hich invoh ·c no chonge in t he fu nd•mcn1 3] policie< of m y administruion of which )'OU ne quite familiar. Whort cir· cumn •nccs .re •uch •S to precl ude previou; con1uli.1ion with me, )'OU nuy ac t on urgent ciue>1 ion1 of loc•l 3J minis1r>1ion wi1hou t Ill)' prcviou< approvJ!. In >uch cues, you .re w ""'your own bt.-n judg· nw111 >nd sound disc rciion. Wi1 h rdcuncc to the govern ment -owned corpon 1io1 u. you .re •ho •ul horiud 10 toke >uch steps as will protect 1hc intcrc1l of 1hc i;overn menl ciiher by con tinuing, curioiling or tcrmi1u 1ing d •eir operations as circumsunc.s m>y WHron t Sinccrcl yrours, (Sgd. ) i\IANUEL L QUEZON The responsibility placed upon Abad San· tos was enormous. But he proved equal to the situation. The many years of service to his credit were more than ample preparation for the trust suddenly reposed upon him. At this juncture jt is proper io digress and trace briefly his early life. IT Jose Abad Santo~ was born in San Fer. n;i,ndo, Pampanga, on February 19, 1886, the sixth of the ten children of Vicente Abad Santos and Torribia Basco. When ouly eighteen years old, he went to America as a government pensior:ado to complete his education. H e studied for sometime in the Santa Clara College at San Jose, California, and then enrolled at Northwestern Univer. sity where he obtained the degree of Bache. !or of Laws. He pursued fu rther studies in the George Washington University, where he was granted the degree of Master of Laws. Upon his return to the Philippines, he be· came on December 1, 1909, a clerk in the Executive Bureau with a salary of ?960 per annum. 0~ July 31, 1914, Jie was appointed :IS· sistant attorney of the Bureau of J ustice, after which he became attorney for the Philippine National Bank. He was rhe tech. nical adviser and ex-officio member of the first Independence Mission to the United States in 1919. Jn 1922, he served for three months as l[nder.Secretary of Justice, im. mediately after which he became the Secre· tary. Because of the cabinet crisis under rhe Wood administration, he resigned on July 17, 1923 . Jn 1926 he headed the Phil. ippine Educational Mission to America. He resumed in 1928 the Justice portfolio under Governor·General Stimson, which position he occupied until his appointment to die Supreme Court in 1932. Jose Abad Santos devoted the best years of his life to the public service. He was President of the Philippine Bar Association and of the Young Men's Christian Associa· tion, membe!' of the Abiertas House of Friendship, educational adviser of the Co· lumbian Institute, and Chairman of the Board of Trustees of the Philippine Women's University. He was actively identified with the Protestant movement of the Philippines :ind was prominent in Masonic circles. Ill And now we go back to the last days of this great man. The nature of his position necessitated communication with the c3pitals of the different provinces not yet 1mdt'r enemy control. Therefore, he had to travel by ferryboat and car through the length and breadth of Negros, Iloilo, and Cebu. On Ascension Day, April 11, 1942, while tr3· veling somewhere around Carcar, Cebu, with his son, Jose, Jr., Colonel Valeriano of the Philippine Constabulary, and some enlisted men, he and his parry met truckloads of sol· dicrs. Unaware that the enemy h:id landed in the vicinity, they stopped the trucks, think· ing all the time that the passengers therein were USAFFE soldiers. Finding out too late due the soldiers were Japanese, Jose Abad May 31, 1949 Santos and his comp:i.nions calmly went down from their cars. They were ordered to surrender. Upon inquiry, Abad Santos identified himself :i.s the Chief Justice of the Philippines. The . Japanese confiscated the pistol of Colonel Valeriano and those of the enlisted men. The captives were then taken to the Japanese concentration camp in Cebu City. For the first time, the Japanese learned that Jose Abad Santos was actually the head of the Commonwealth Government. Evidently, because of the importance of their prisoner and fearing rescue or escape, father and son were moved from one camp to another. The senior officers of the Japanese Army in Cebu, Gener:il Kawagutsi and Colonel Kawakami, "played the role of high priest and Pontius Pilate," respectively, towards Jose Abad Santos. For almost twenty days, he was subjected to gruelling and mortifying inquisition. The exact n:i.ture of the investig:i.tion is still shrouded in secrecy. Jose Abad S:intos, Jr., the only available witness w:is never present on the spot whenever his father was interrogated. One signific:i.nt remark, overheard by the son from his father on one ocnsion, PATENTS ... (Co11fi1111ed from /1agc 267) thi• record made it a good tnde-muk for just what it wu applied to, pure or nriight when flour ; to thlt commodity France mvtr 1pplied the name, but did apply it to a commercially dininct uticle 1s he hadgoodrighttodo. "Both pirties ue entitled to be protected in their 1neul businc1sc1. Funce has not nuched \Vashburn; thtrefore the buer meds no relief. \Va,hburn hu delilxutcir attached Fnnce; therefoTe 1he decree Nlow was rigl11, ~nd i~ affirmed 11.•ith co<n:· Frmce Milling co., Inc., v. \IC'.;u l1burn -CTO~by Co., lnc.,7F(2) 30'4." The trademark LIBERTY herein applied for appears to me to belong to the cl:i.ss of "weak m:i.rks." It further :i.ppears to be of the sub-class which involves employment by l number of traders for different commodities. The records of the Patent Office show that, in addition to Tan Khek Chiok, LIBERTY is registered to four other persons for as many cbsses of goods-for cornH:irch, bundry so:ip, lemon1des :ind soft drinks, and for the manufocture of bre:id. fn view of these circumst:rnces, I believe lh:it the petitioner's application should be reinstated in the active files of the Patent Office, upon the condition, however, that there be submitted in place of the original application a new one prep:ired in accordance with the new Act and with the Rules of Practice issued thereunder, the new application to be given proper priority of action, and all fees paid upon the original application to be credited to the new one. Manila, April 19, 1949. (Sgd.) CELEDON IO AGRA \I A Director of Patents May 31, 1949 revealed the m:i.n's indomitable courage and unflinching loyalty to a cause he served long and well. He said: "I cannot possibly do that bec:i.use if I do so I would be violating my oath of :i.llegi:mce to the United S.ates. What the Japanese asked him to do is still a matter of conjecture. Previously, however, he had been asked to contact General Roxas somewhere in Mindanao who up to that time had not yet surrendered. In all probability, the Japanese wanted him to induce General Roxas to sur:·ender. Apparently, the very idea was revolting to Abad Santos' conscience. There is ground to believe that this demand prompted the utterance of those brave words of defiance by a prisoner in the face of his captor. Th:it refusal cost Jose Ab:i.d S:intos his life. On or about May I, 1942, father and son were taken from Cebu to Mindan:i.o on a Japanese tr:insport which formed part of a convoy sCnt on a military expedition to Mind:i.nao. They landed at Par:ing, Cotab:ito, under fire from the USAFFE. About this b st portion of the'r foteful odyssey, Jose, Jr. relates: "We 11•ue placed logcthcr with 1he croops in OM of the landing barges. While 11·e were moving towud 1hc beach, the USAFFE forces entrtncheJ on ihe shore were firing at the landing barges. At th>t moment, I recall th•t my father wa' strnding unight and 1he Japanese •houted at him: 'Hey! you get down!' and they signalled him 10 lie low. I also told him but he had an indifferent attitude u that time. AftH landing, we hiked for about three hours through mud and heavy lugg•ge until we rc1ched 1he Con1tabubry bHracks at P.rang. After one night in Paung, in 1he afternoon 1hey placed min a truck. We wCTC no1 able to proceed farther th11 day because 1hey had not clnnd up the 01her pHU to which they were ~upposed to Ix he3ded." On or about May 4, 1942, they reached M:ilabang. For Lhree days father and son were confined in a school house. For three days, they waited for further developments, doing nothing but re:id whatever they could get hold of. The foul stroke of fate was slow in comi11g. But slow :is it was, there was th:it tragic inevitability, that powerful surge of destiny noticeable even from the dry, humid air of that summ..:r afre1 noon. At approximately two o'clock in rhc aftcrn001\ of May 7, 1942, the Jap:inese interpreter, Keiji Fukui, went to the Chief Justice to summon him to the Japancsc Headquarters. After l few minutes, Jose Abad Santos returned and called for his son. Both went into a small hut ncarby and there Lhc father stoically informed his son: "I have been condemned to be executed." Thereupon, Jose, Jr. broke clown and wept. But the father smilingly and affection:itely reproved the son: "Don't cry. Wh:it is the matter with you? Show these people th:i.t you are brave. It is a rare opportunity to die for one's country :ind not everybody h:is that chance." What brave words, wh:i.t sublime soul was thereby reve:i.led by their utterance! THE LAWYERS JOURNAL Jose Abad Santos Afcer exhorting all of his family to live up to his name, father and son said a short pr:oyer. In final parting, they embr:iced each other. And in a few minutes the son heard a volley of shots. Jose Abad Santos w:is de3d, martyr to a very worthy cause. No less than an enemy, the Japanese interpreter who witnessed the execution, admired the courage and stoical unconcern with which Jose Abad Santos confronted his end. Pointing out later to che son the father's grave, Keiji Fukui remarked: "Your fother died a glorious death." Ostensibly, Jose Ab:id Santos was executed upon the imputation of having been responsible for the destruction of the bridges and other public works in Cebu. The ch3rge was entirely unfoundcd, nay malicious. But he was never given an opportunity to disprove the accusation. In truth, the acts imputed to him had nothing to do with his duties; he w:i.s a civili3n and it is too Well-known that demolition activities more properly belonged to the military. The Filipino people-and the rest of the world-stand aghast at the horror oil such brut:i.I sadism. Caught in the cruel circumstance of a violent w:i.r, Abad Santos was tVO nre a man to have been sacrificed at the alur of human destruction. But irreplaceable and r:ire as he was, his very ace of supreme dedication has consigned him to immortality. Jose Abad S:i.ntos stands now as :i towering monument to t he idolatrous devotion of our people to the ideals of democracy, justice, and liberty: a shining obelisk that rises to the altitudes of the skies. Hum:in justice m:i.y not be able to devise a means to :avenge fully the crime committed by rhe Jap:i.nese murderers. But at this time, our concern is not so much any more to return in retribution wh:i.tever injustice may h:ive been commitred; but more, we are interested to perpetuate the things for which he died. For only in doing so m3y we hope to justify his supreme love to the Fathcrbnd. &lfishnrss and 1lr111agog11rry tuluad1·antugc of librrfy ... Frre sp1wh 11 oicd the aJiprafs of hair 1111d rnvy 11:; wrll as those of justice and rharify. A frrc press is made the i11sfru111c11f of c111mi11g, greed, and ambition, as wrll as the agency of cu/ightcued and i11depe11dc11t opinion. How shall we fireservc the supremacy of virtue and the so1111d11ess of the common judgment? How shall we butlress Democracy? The peril of this Nation is 11ot i11 any forrig11 . for! Wr, the J1cople, arc its power, ifs prril, and ifs bopc!-CttAR.LES EVANS HUGHES. 269 Civil Code with the imereu for 1hc p•yment alrudy made. If the payment is made before the debt is due, no interest for the intervening period may be demanded. Whrn one of the wlidary debtor~ cannot, becrnse of his insolvency, rcimbuuc his share to 1he d,·bior paying the obligation, such •lure shall be borncbyallhiscodcb1ors, inproportiontothedebt of c.1ch. (llHa) ART. 1238. Payment hr• wlidary debtor shall not entitle him to reimbursement from his codcbtors if such payment h made ofur the obliguion hu prescribed or become illegal. (n) ART. 12}9. Tho remission made by the creditor of the share which affects one of the solidary debtors docs not uleuc the lauer from his re~ ponsibility towards the codcbtors, in cue the debt had been totally paid by anyont of them before the remission wu effected. (11 46a) ART. 1240. The rcminion of the whole obligation, obtained hr one of the solidary debtors, docs not entitle him 10 reimbursement from his codcb1on. (o) ART. IHI. If the thing hu hl:cn lost or if the presution has become impossible without the fault of the solidity debtors, the oblignion shall be utinguished. If there was fault on the pHt of my one of them, all shall be responsible to 1hc creditor, for the price and the payment of damages and intcrcn, without prejudice to their action, •s•inst the guilty or negligent debtor. If through a fortuitous event, the thing is lost or the performance has become impossible after one of 1b' soliduy dtbtoU hu incurred in deby through the judicial or u1u-judicial dem•nd upon him by the neditor, the provhions of the preceding pani;raph shall apply. (11'47a) A"T. 1242. A solidary debtor may, in actions filed by 1hc creditor, avail himself of all defenses ... hich arc deri"cd from the nature of the obligation •nd of those which arc personal 10 him, or pertain to hi' own share. With respect to those which personally belong to the others, he may aviil himself thereof ooly n rtgards thot part of the debt for which ·the Inter arc respon,ible. {1148a) An. 1241. The di\'isibility or indivisibility of the things that uc the object of obligations in which there is only one debtor and only one creditor docs not alter or m'ldify the provi•ion1 of Chapter 2 of chis Title. ( 110) An. 1 lH. A joint indivUibk obliguion gives rise to indemnity for d•mages from the time anyone of the debtors doe• not comply with his undert>king. T he debtors who may hne been ready 10 fulfill their promises •h•ll not contribute to the indemnity beyond the corresponding ponion of the price of the thing or of the value of the serv ice in which the obligation co'n•i•ts. (llfO) AJ.T. 1241. For the purposes of the preceding articles, obliguiom to give dcfiniu things and those which arc not susceptible of putial performance shall be deemed to be indivi1iblc. When the obliguion has for its object the c1tecu1ion of a certain number of days of work, the accomplishment of work by metrical units, or an•logous things which hr their nature are rnsceptible uf partial performance, it 1hal! be divisible. However, even though the object or .si:rvice may be physically divisible, an obliguion i1 indivisible if so provided by law or intended by the panics. l nobligationsnoltodo,divisibilityorindivisibility shall be determined by the character of the prestaiion in each pHticular cue. ( l!Ila) SECTION 6.-0bUgativm with a Pe11al Cfau<t AllT. 1246. In obligations wid1 a pen•I d•usc, the penJl!y shall subnitute the indemnity for damage! and the payment of inuresu in case of noncoropli•nce, if 1hcre is no nipulation to the con272 trHy. Neverthde11, damages sh:all be 1uid if the oblisor rduseJ to p•y the penalty or iJ guilty of fraud in the fulfillment of the obligation. The penalty may be enforced only when it is dcmandable in accordance with the provision• of this Code. (1112a) AJ.T. 1247. The debtor cannot c1tempt himself from the performance of the obligation by paying the penalty, U\'e in the ca>c where this right has been cxprcnly rcscn·ed for him. Neither can the creditor demand the fulfillment of the obligation and the ntisfaction of the pen~lty >t the same time, unlen this risht has been clearly granted him. Howe\'er, if after the creditor has decided to require the fulfillment of the obligAtion, the performance thereof should become impouiblc without his fault, the pc1ulty may be enforced. (lHh) AJ.T. INS. Proof of :ac!Ual damages suffered by the creditor is not necesnry in order thn the penalty m•y be demanded. (n) An. 120. The judse shall equitably rcdu~c the pcnllty when the principal obligation has been p.rdy or irregululy complied wi1h by the debtor. Enn if there has been no p<'•formAnce, the penalty may also be reduced by the courts if ii is iniquitou1 or unconscion.ble. (llHA) A'-T· 12l0. The nullity of th1: penal clause doc1 not carrf with it that of the principd obligation. The nullity of the principal obligation CHries "·ith it that of the penal cbuse. ( l lSI) EXT INGUISHMENT OF OBLlGA TlONS 1211. Obligations arc u1ingui1hed: (I} By payment or performance; (2) By the Ion of the 1hing due; (l) By the condon~tion or rcminion of 1he debt; ('1) By the confusion or merger of the righu of creditor and debtor;· (I) By compensation; (6) By novation. Other c:auses of utingu,.hment of obligation!, such as annulmen1, rescinion, fulfillment of a rewlutory condition, and prescription, arc governed clsc ... ·herc in this Code. ( llSh) S~Cl'ION t.-/'a)lllfllf or J'nfvr111~11a ART. lll2. Payment rncan1 not only the deli"ery of money but also the performoncc, in :anr other manner, of an obliguion. (n) t\1tT. i21J. A debt shall not be undcmood to ha.·c been paid unlcs1 the thing or service in which the oblig:aion con!ists has been 'omplctdr delivered or rendered, al the case may be. ( 1117) ART. IH4. If the obligation has been sub· 1tantially performed in good faith, 1he obligor may recover u though there had been • nrict and complete fulfillment, less dam•ges suffered by the obligor. (n) A,_T, l2J:l. When the obligee accepts the performance, knowing its incompletenen or irregularity, ~nd without upressing any protest or objection, the obligation is deemed fully complied with. (n) AJ.T. IH6. The creditor is not bound 10 accept payment or performance by a third person who hu no interest in the fulfillment of the obligation, unlen there is a stipubtion to the contruy. Wlioc\'er pays for another may demand from the debtor what he has paid, except tint if he paid without the knowledge or against the will of the debtor, he crn recover only insofar as the payment has hl:cn benefici>l to the debtor. ( llSh) AJ.T. 12J7. Whoever pays on behalf of the debtor without the knowledge or againll the will of the huer, c.nnot compel the creditor to subrosate him in his rights, such as th0'5c arising from a mortgage, guaranty, or penalty. ( I U9A) AJ.T. IHS. Payment made by a third persnn who docs not intend to be reimbursed by 1he THE LAWYERS JOURNAL debtor is deemed to be a donation, which rcquirc1 the debtor'J consent. But the payment is in any case vaiid as to the creditor .,ho has accepted 1t. (o) AJ.T. 12!9. In obligations to give, p1yment nude by one who docs not have the free disposal of the thing d11e and capacity to alienate it sh.11 not be valid, without prciudice to the provisions of irtidc 1447 under the Title on .. Natural Obligations." (1160a) A'-T. 1260. Payment shall be mlde to the person in who1e favor the 'obligation has been conllitutcd, orhissuccessorininterc11,orlnypcrsonauthorized lo receive it. (1162a) AkT. 126l. Payment to a person who is incaplC"itatcd to :administer his propenr shall be ulid if he has kept the thing delivered, or insofar as the payment hu been hl:ncficial to him. Payment made 10 a third person shall •lso be nlidinsofarasithasrcdoundcdtothcbenefitof the creditor. Such benefit to the creditor need not be pro•·ed in the following cases: (1) lfaftcrthcpayrnent,thcthird person:acquircs ihe creditor's righu; (2) If the creditor ratifies the parment to the third person; (l) If by the creditor's conduct, the debtnr hashl:en led to believe that the third person had •Uthori.ty to receive th1: payment. (IUh) AkT. 1262. Payment made in good faith to ,ny person in po.senion of the credit 1hall rcle.se the debtor. (116'1) t\"T. 1261. Payment made to the creditor by the debtor after the latter has hl:cn judiciallr ordered to retain the debt shall not be valid. (110) ART. 1264. The debtor of • l hing CAnnot compel the creditor to receive a different one, although the latter may be of the nme value i<, or more valuable than that which is due. In obligations to do or uot to do, an act or forbcHancc cannot be substituted by another act or forbearance against the obligce's will. (1!66•) A'-T· l26l . Dation in payment, whereby property is alienated tothecreditorinsatisfactionof a debt in money, shall be governed by the law of sale1. (n) AJ.T. 1266. When the oblisation consins in the delivery of on indeterminate or generic thing, whow quality and circ umstances have nnl been stoted, the creditor cannot demand a thing of superior quality. Neither can the debtor deliver a thing of inferior quality. The purpo1e of the obligHion and other circumstances shall be taken into consider.tion ( 1167a) AJ.T. 1!67. Unless it is otherwise stipulated, 1hc extra-judicial expenses required by the payment 1hall be for the account of the debtor. With rcgud to judici•l C0'5ts, the Rules of Court shlll govern. · (1168a) AJ.T. 1268. Unless there is an express nipul•tion to th>t cffoct, the creditor cannot be compelled partially to receive the prestations in which the oblig.iion consists. Neither may the debtor be required to m•kc pani•l payments. However, when the debt is in part liquidated and in put unllquidated, the creditor may demand and the llebtor may effoct the payment of the fo rmer without waiting for the liquidation of the latter. (1169a) ART. 1269. The payment of debts in money shall be made in tl1e currency stipulated, and if it is not possible to deliver such currency, then in the currency which i• legal tender in the Philippines. The delivery of promi.rory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the hult of the creditor they h>ve been impaired. In the meantime, the action derived from the original obligation shall be held in abcy>nCC. (1170) A"T. 1270. In case an uuaordinary inflation or deflation of the currency Stipulated should suMay 31, 1949
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