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RULE
2 COMMENCEMENT
OF ACTION
Section 1. Complaint,
when and to whom filed. All administrative complaints for
violation
of the IP Code or IP Laws shall be commenced by filing a verified
complaint
with the Bureau within four (4) years from the date of commission of
the
violation, or if the date be unknown, from the date of discovery of the
violation. The verification portion of the complaint shall include a
statement
that to the best of his knowledge, the party commencing the action has
not filed any other administrative action or proceeding involving the
same
issue or issues before any tribunal or agency nor such action or
proceeding
is pending in other quasi-judicial bodies: Provided, however,
That
if any such action is pending, the status of the same must be stated
and
should knowledge thereof be acquired after the filing of the
complaint,
the party concerned undertakes to notify the Office within five (5)
days
from such knowledge.
The complaint
shall thereafter be forwarded to the Hearing Officer who shall act as
the
Clerk of Court for all the proceedings to be conducted therein.
Section
2.
Original jurisdiction. (a) The Bureau shall have original
jurisdiction
in administrative actions for violations of laws involving intellectual
property rights where the total damages claimed are not
less
than two hundred thousand pesos
(P200,000.00):
Provided however, That availment of the provisional remedies may be
granted
in accordance with these Regulations and the provisions of the Rules of
Court. The Director shall coordinate with local enforcement agencies
for
the strict and effective implementation and enforcement of these
Regulations.
The commencement
of the action under these Rules and Regulations is independent and
without
prejudice to the filing of any action with the regular courts.
Section
3.
Venue of hearings. All hearings on actions covered by these
regulations
shall be held within the premises of the Office. However, upon
written
request and payment of the required fee, the Director may authorize
that
the mediation conference or any session thereof be held outside
the
premises of the Office provided that the same is necessary and will
enhance
the proceedings and the other party, if the request was made by only
one
party, agrees thereto. The parties shall not unreasonably
withhold
their consent to such request. The total cost to hold the
mediation
conference or any session thereof outside the premises of the
Office,
including air transportation, accommodation and per diem, shall be
borne
by the party requesting; and, if the request was made by all parties,
the
total cost shall be shared by them equally or in such other proportion
as they may state in their request.
Section
4.
Formal requirement. The Complaint shall be typewritten and
addressed
to the Bureau, and shall contain the names and residences of the
parties
and a concise statement of the ultimate facts constituting the
complainant’s
cause or causes of action. It shall specify the relief/s sought,
but it may add a general prayer for such further or other relief/s as
may
be deemed just or equitable. Every pleading filed shall likewise
contain a caption setting forth the name of the Office, the title of
the
case, the case number, and the designation of the pleading.
No pleading shall
be accepted by the Office unless it conforms to the formal requirements
provided by these Regulations and accompanied by the required filing
fee.
Section
5. Partners, named individually. When two or more
persons associated
in any business, transact such business under a common name, the
associates
may be sued under such common name.
The associates of
the business who are sued under a common name may be named individually
in the Answer filed by them or on their behalf with their respective
postal
addresses.
Section
6. Payment of filing fee. The complaint shall be
filed
in triplicate
with the Bureau upon payment of the required fee as assessed by the
Bureau.
Section
7. Representation and confidentiality of records.
(a)
The complaint
may be prosecuted by the complainant by himself or through
counsel.
The complainant and his counsel are required to conduct their business
with politeness, decorum and courtesy.
(b) It is strictly
and absolutely forbidden for the Director, and other employees of the
Office
to discuss the case or any phase thereof with either counsel of record
in the absence of the other or with any third person not having any
interest
or legal standing before the Bureau.
Section 8. Summons.
(a) Within three (3) days from receipt of the complaint,
the
Staff Clerk shall prepare and the Process server serve, the summons or
Notice to Answer together with a copy of the complaint to the
Respondent
by mail or by personal service. If the service is done through
registered
mail, the return card shall be attached to the documents as evidence of
receipt.
(b) If service
cannot be made under the preceding paragraph, the office and place of
residence
of the party being unknown, service may be made by publication at the
expense
of the complainant. When a party summoned by publication failed
to
appear in the action, final orders or judgments against him shall be
served
upon him also by publication at the expense of the prevailing
party.
Section
9.
Answer. The summons shall require respondent to answer the
complaint
within ten (10) days from receipt thereof. The Respondent shall
answer
the complaint in writing, either by specifically denying the material
allegations
of the complaint or alleging any affirmative defense.
If the respondent
fails to answer within the time allowed therefor, the Hearing Officer
motu
proprio or upon motion of the complainant with notice to the
respondent,
and proof of such failure, declare the respondent in default.
Thereupon,
the Hearing Officer shall proceed to render judgment granting the
complainant
such relief as his pleading may warrant, unless the Hearing Officer in
his discretion requires the complainant to submit evidence. All such
decisions
or orders shall comply with Rule 11 of these Regulations.
Section 10. Pre-trial.
Upon joinder of issues, the pre-trial conference shall be set
immediately
by the Hearing Officer. The notice of said pre-trial shall be
delivered
by the Process Server within two (2) days from receipt of the Answer or
other pleadings. The notice of pre-trial shall require the
parties
to submit a pre-trial brief containing the following:
(a) A brief
statement
of the parties’ claims and defenses.
(b)
Suggestions,
if any, for simplification of issues.
(c) A
list of documents
they intend to produce as evidence, together with appropriate markings
as exhibits as well as the identification of witnesses and a statement
of the substance and purpose of their testimony during the hearing on
the
merits. The originals of these documents must be produced for
comparison
during the pre-trial conference without prejudice to the presentation
of
additional documents during the trial if the party was prevented from
producing
the same during the pre-trial on account of fraud, accident, mistake,
excusable
negligence or such other reason which the Director or Hearing Officer
deems
justifiable in the interest of justice and fair play.
(d) A
statement whether
they can stipulate on facts not covered by admissions in their
pleadings.
If so, they should come with drafts of matters they are ready to
stipulate
on.
(e) A
statement whether
they are open to the possibility of an amicable settlement; if so, they
should be prepared on the pre-trial date to submit their minimum
demands
for purposes of settlement.
(f) Such
other matters
as may aid in the prompt disposition of the action.
Each party shall file
with the Bureau of Legal Affairs and serve on the adverse party said
pre-trial
briefs at least three (3) days before the date of pre-trial conference
fixed in the notice.
As counsel needs
the consent of his client for purposes of accepting an offer of
compromise,
the attendance not only of the attorneys of record but also of the
parties
themselves, is required for the pre-trial conference herein
scheduled.
Presence of the parties themselves may be dispensed with if their
counsel
is provided with power of attorney or the appropriate corporate
authorization
to make admissions and/or to accept and approve compromise
proposals.
Section
11. Notice of pre-trial. The notice of pre-trial
shall
be served
on counsel, or on the party who has no counsel. The counsel
served
with such notice is charged with the duty of notifying the party
represented
by him.
Section
12. Appearance of parties. It shall be the duty of
the
parties
and their counsel to appear at the pre-trial. The non-appearance
of a party may be excused only if a valid cause is shown therefor or if
a representative shall appear in his behalf fully authorized in writing
to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of
facts
and of documents.
Section
13.
Effect of failure to file pre-trial brief or to appear. The
failure
of the complainant to submit the pre-trial brief within the prescribed
period or to appear at the pre-trial pursuant to these
Regulations
shall be cause for dismissal of the action with prejudice motu
proprio or upon motion. A similar failure on the part of the
respondent
shall be cause to declare Respondent as in default motu proprio or upon
motion and to allow the complainant to present his evidence ex parte
and
the office to render judgment on the basis thereof.
Section
14. Record of pre-trial results. After the
Pre-Trial,
the Hearing
Officer shall make an order which recites the action taken at the
conference,
the amendments allowed to the pleadings, and the agreements made by the
parties as to any of the matters considered. Such order shall
limit
the issues for trial to those not disposed of by admissions or
agreements
of counsel and when entered, controls the subsequent course of the
action,
unless modified before trial to prevent manifest injustice.
Section
15.
Pre-trial calendar. The Hearing Officer shall cause to be
prepared
a pre-trial calendar of cases for consideration as above
provided.
After preparing notice of pre-trial, it shall be the duty of the
designated
clerk of the Bureau to place such case in the pre-trial calendar.
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