INTELLECTUAL
PROPERTY OFFICE
March 28,
2001
NOTICE
Pursuant to
Section
1 of the Final Provision of the Rules and Regulations on Administrative
Complaints for Violation of Laws involving Intellectual Property Rights
which took effect on 16 December 1998, NOTICE IS HEREBY GIVEN that the
Intellectual Property Office will begin to accept and adjudicate
complaints
for violations of laws involving intellectual property rights on 26
April
2001 to commemorate the First World Intellectual Property Day.
For the
information and
guidance of all concerned, the Rules
and Regulations have been modified and are hereby published in
full,
as modified:
RULES
AND REGULATIONS
ON ADMINISTRATIVE COMPLAINTS FOR VIOLATION OF LAWS INVOLVING
INTELLECTUAL
PROPERTY RIGHTS
Whereas, the
State
recognizes that an effective intellectual and industrial property
system
is vital to the development of domestic creativity, facilitates
transfer
of technology, attracts foreign investments and ensures market access
for
our products;
Whereas,
the State
recognizes that the use of intellectual property bears a social
function
and to this end, the State shall promote the diffusion of knowledge and
information for the promotion of national development and progress and
the common good;
Whereas,
it is
the policy of the State to enhance the enforcement of intellectual
property
rights in the country and to protect and secure the exclusive rights of
scientists, inventors, artists and other gifted citizens to their
intellectual
property and creations, particularly when beneficial to the people;
Now,
therefore,
pursuant to the provisions of Republic
Act No. 8293, otherwise known as the Intellectual Property Code of the
Philippines, the following rules and regulations on administrative
complaints for violation of laws involving intellectual property rights
are hereby promulgated:chanroblesvirtuallawlibrary
Rule
1
DEFINITIONS,
INTERPRETATION, RULES
OF COURT
Section
1. Definition
of Terms— Unless otherwise indicated, the following terms shall
be
understood as follows:chanrobles virtual law library
(a) "Answer"
means a pleading in which the adverse party sets forth the negative and
affirmative defenses upon which he relies;
(b) "Bonds"
and
"Counterbonds" shall refer to cash bonds and cash counterbonds in
the
form of cash, cashiers check or manager's check, excluding surety bonds
and surety counterbonds;
(c) "Bureau"
means the Bureau of Legal Affairs of the Intellectual Property Office;
(d) "Chief
Hearing
Officer" means the officer within the Bureau who exercises
immediate
supervision over any Hearing Officer. His title or official designation
may differ from the words "Chief Hearing Officer" depending on
the
structure of the Office;
(e) "Complaint"
means a concise statement of the ultimate facts constituting the
complainant's
cause or causes of action. It shall specify the relief sought, but it
may
add a general prayer for such further or other relief as may be just
and
equitable.cralaw:red
(f) "Court"
means
a court of general jurisdiction such as Regional Trial Court;
(g) "Director
General" means the head of Intellectual Property Office;
(h) "Director"
means the Director of the Bureau of Legal Affairs;
(i)
"False Designation
of Origin" means the act of any person who, on or in connection
with
any goods, or services, or any container for goods, uses in commerce
any
word, term, name symbol, or device, or any combination thereof, or any
false designation of origin, false or misleading description of fact,
or
false or misleading representation of fact, which: (i) is likely to
cause
confusion, or to cause mistake, or to deceive as to the affiliation,
connection,
or association of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial
activities
by another person; or (ii) in commercial advertising or promotion,
misrepresents
the nature, characteristics, qualities, or geographic origin of his or
her or another person's goods, services or commercial activities, shall
be liable to a civil action for damages and injunction provided in
Sections
156 and 157 of the IP
Code by any person who believes that he or she is likely to be
damaged
by such act.cralaw:red
(j) "False
or
Fraudulent Declaration" means the act of any person who shall
procure
registration in the Office of a mark by a false or fraudulent
declaration
or representation, whether oral or writing, or by any false means;
(k) "Hearing
Officer" means the officer within the Bureau authorized to
exercise
the functions of "Hearing Officer" in these Regulations. The
title
or official designation of such officers may differ from the words "Hearing
Officer" depending on the structure of the Office;
(l) "Infringement
of Copyright and Related Rights" means any violation of the rights
provided under Part IV of the IP
Code and/or the applicable IP Law, including the act of any person
who at the time when copyright subsists in a work has in his possession
an article which he knows, or ought to know, to be an infringing copy
of
the work for the purpose of: (i) selling, letting for hire, or by way
of
trade offering or exposing for sale, or hire, the article; (ii)
distributing
the article for purpose of trade, or for any other purpose to an extent
that will prejudice the rights of the copyright owner in the work; or
(iii)
trade exhibit of the article in public.cralaw:red
(m) "Infringement
of Patent" means any violation of any of the rights of patentees
and
holders of utility model patents and industrial design registrations
under
Part II of the IP
Code
and/or the applicable IP Law, including the act of making, using,
offering
for sale, selling or importing a patented product or a product obtained
directly or indirectly form a patented process, or the use of a
patented
process without the authorization of the patentee.cralaw:red
(n)
"Infringement
of mark" means any violation of any of the rights of the
registered
owner under Part III of the IP
Code and/or the applicable IP Law, including the act of any person
who shall, without the consent of the owner of the registered mark, and
regardless of whether there is actual sale of goods or services using
the
infringing material:chanroblesvirtuallawlibrary
(i) use
in commerce
any reproduction, counterfeit, copy or colorable imitation of a
registered
mark or the same container or a dominant feature thereof in connection
with the sale, offering for sale, distribution, advertising of any
goods
or services including other preparatory steps necessary to carry out
the
sale of any goods or services on or in connection with which such use
is
likely to cause confusion, or to cause mistake, or to deceive; or
(ii)
reproduce,
counterfeit, copy or colorable imitate a registered mark or a dominant
feature thereof and apply such reproduction, counterfeit, copy or
colorable
imitation to labels, signs, prints, packages, wrappers, receptacles or
advertisements intended to be used in commerce upon or in connection
with
the sale, offering for sale, distribution, or advertising of goods or
services
or in connection with which such use is likely to cause confusion, or
to
cause mistake, or to deceive.
(o) "Intellectual
property rights" include:chanroblesvirtuallawlibrary
(i)
Copyright
and Related Rights;
(ii)
Trademarks
and Service Marks;
(iii)
Geographic
Indications;
(iv)
Industrial
Designs
(v)
Patents;
(vi)
Layout-Designs
(Topographies) of Integrated Circuits; and cralaw:red
(vii)
Undisclosed
Information (p) "IP
Code" means Republic
Act No. 8293 otherwise known as the Intellectual Property Code of the
Philippines;
(q) "IP
Law"
means any law, in addition to the IP
Code, involving intellectual property rights;
(r) "Office"
means
the Intellectual Property Office;
(s) "Regulations"
means
this set of rules and regulations and such Regulations as may be
formulated
by the Director of Bureau of Legal Affairs and approved by the Director
General;
(t) "Unfair
Competition" means the act of any person who shall employ deception
or any other means contrary to good faith by which he shall pass off
the
goods manufactured by him or in which he deals, or his business, or
services
for those of the one having established such goodwill, or who shall
commit
any acts calculated to produce said result.cralaw:red
The
following shall
likewise constitute unfair competition:chanroblesvirtuallawlibrary
(i) the
act of
selling one's goods and giving them the general appearance of goods of
another manufacturer or dealer, either as to the goods themselves or in
the wrapping of the packages in which they are contained, or the
devices
or words thereon, or in any other feature of their appearance, which
would
be likely to influence purchasers to believe that the goods offered are
those of a manufacturer or dealer, or the act of clothing the goods
with
such appearance as shall deceive the public and defraud another of his
legitimate trade, or the act of reselling the goods by any subsequent
vendor
with a like purpose.
(ii)
the act of
employing any other means, by artifice or device, calculated to induce
the false belief that a person is offering the services of another who
has identified such services in the mind of the public.cralaw:red
(iii)
the act of
making any false statement in the course of trade or any act contrary
to
good faith of a nature calculated to discredit the goods, business or
services
of another.cralaw:red (u) "Violation
of laws involving intellectual property rights mentioned in Rule 2
Section
2" means violation of any law relating to the intellectual
property
rights enumerated under Section 4 of Republic
Act No. 8293.
Sec. 2.
Interpretation. —
These Regulations shall be liberally construed to carry out the
objectives
of the IP Code
and
IP Laws and to assist the parties in obtaining just and expeditious
settlement
or disposition of administrative cases filed before the Office.
Sec. 3. Suppletory
Application of the Rules of Court. — These Regulations shall
primarily
govern in the prosecution of administrative complaints in the Bureau.
The
provisions of the Rules
of Court, however, shall apply in a suppletory character.
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. A
complaint is verified by an affidavit that the affiant has read the
pleading
and that the allegations therein are true and correct of his knowledge
and belief.cralaw:red
A
pleading required
to be verified which contains a verification based on "information
and
belief" or upon "knowledge, information, and belief" or
lacks
proper verification, shall be treated as an undersigned pleading.cralaw:red
The
complaint shall
include a certification that the party commencing the action has not
filed
any other 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 Bureau within five (5) days from such
knowledge.
Failure to comply with the foregoing requirements shall not be curable
by mere amendment of the complaint or other initiatory pleading but
shall
be cause for dismissal of the case without prejudice. The submission of
a false certification or non-compliance with any of the undertaking
therein
shall constitute indirect contempt, without prejudice to the
corresponding
administrative and criminal actions. If the acts of the party or his
counsel
clearly constitute willful and deliberate forum shopping, the same
shall
be ground for summary dismissal with prejudice and shall constitute
direct
contempt.cralaw:red
Sec. 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.cralaw:red
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.cralaw:red
Sec. 3. Venue
of Hearings. — All hearings on actions covered by these
regulations
shall be held within the premises of the Office.cralaw:red
Sec. 4. Formal
Requirement. — The Complaint shall be typewritten and addressed to
the Bureau, and shall contain the names and residence 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
forth the name of the Office and the Bureau, the title of the case, the
case number, and the designation of the pleading.cralaw:red
No
pleading shall
be accepted by the Bureau unless it conforms to the formal requirements
provided by these Regulations and accompanied by the required filing
fee.cralaw:red
Sec. 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.cralaw:red
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
address.cralaw:red
Sec. 6. Payment
of Filing Fee and Docketing. — The complaint shall be filed in
triplicate
with the Bureau, which shall issue an order for the payment of the
required
fee.cralaw:red
Upon
payment of
the required fee, the complainant, his counsel, or representative shall
submit to the Bureau a copy of the receipt and present the original
copy
thereof for comparison. Immediately after the receipt of proof of
payment
of the required fee, the Records Officer or any authorized officer of
the
Bureau shall acknowledge receipt of the papers by assigning the
Administrative
Complaint Number, docket the same, and raffle the case to any of the
Hearing
Officers.cralaw:red
Sec. 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.cralaw:red
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.cralaw:red
Sec. 8. Summons. —
(a) Within three (3) days from receipt of the complaint, the Staff
Clerk
shall prepare, and the Process Server shall 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.
The proof of service of a summons shall be made in writing by the
server
and shall set forth the manner, place and date of service; shall
specify
any papers which have been served with the process and the name of the
person who received the same; and shall be sworn to when made by a
person
other than a sheriff or his deputy.cralaw:red
(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 in a
newspaper
of general circulation, once a week for three (3) consecutive weeks and
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. If the service has been made by publication, service may be
proved
by the affidavit of the printer, his foreman or principal clerk, or of
the editor, business or advertising manager, to which affidavit a copy
of the publication shall be attached, and by an affidavit showing
deposit
of a copy of the summons and order for publication in the post office,
postage prepaid, directed to the party by registered mail to his last
known
address.cralaw:red
(c) Any
application
for leave to effect service by way of publication shall be made motion
in writing, supported by affidavit of the complainant or some person on
his behalf, setting forth the grounds for the application.cralaw:red
(d) When
the service
has been completed, the server shall within five (5) days therefrom,
serve
a copy of the return, personally or by registered mail, to the
plaintiff's
counsel, and shall return the summons to the Hearing Officer who issued
it, accompanied by proof of service.cralaw:red
Sec. 9.
Answer. —
(a) The summons shall require respondent to answer the complaint within
ten (10) days from receipt thereof. The respondent shall answer the
complaint
in writing, by either specifically denying the material allegations of
the complaint or alleging any affirmative defense.cralaw:red
If the
respondent
fails to answer within the time allowed therefor, the Hearing Officer
shall, 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.cralaw:red
(b) A
party declared
in default may, at any time after notice thereof and before judgment,
file
a motion under oath to set aside the order of default upon proper
showing
that his failure to answer was due to fraud, accident, mistake or
excusable
negligence and that he has a meritorious defense. In such a case, the
order
of default may be set aside terms and conditions as the Hearing Officer
may impose in the interest of justice.cralaw:red
(c) A
party in
default shall not be entitled to notice of subsequent proceedings,
unless
he files a motion to lift or set aside the order of default.cralaw:red
Sec. 10. Answer
to Amended Complaint. — If the complaint is amended, the time fixed
for the filing and service of the answer shall, unless otherwise
ordered,
run from the service of such amended complaint. The original answer
shall
be considered as answer to the amended complaint unless a new answer is
filed within ten (10) days from receipt or service of the amended
complaint.cralaw:red
Sec. 11. Motion
to Dismiss Not Allowed. — No motion to dismiss on any of the
grounds
mentioned in the Rules of Court and in any other law shall be allowed
except
on the ground of prescription. Such grounds other than prescription
shall
instead be pleaded as affirmative defenses, the resolution of which
shall
be made in the decision on the merits. The Hearing Officer may, for
good
cause shown, conduct a preliminary hearing on any of the affirmative
defenses
if this will expedite the resolution of the case.cralaw:red
Sec. 12. 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 three (3) days from receipt of the answer
or last pleading. The notice of pre-trial shall require parties to
submit
a pre-trial containing the following:chanrobles virtual law library
(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 marking
as
exhibits as well as the identification of witnesses an 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 up with drafts of matters they are
ready
to stipulate on;
(e) The
limitation
of the number of witnesses;
(f) A
statement
whether they are open to the possibility of an amicable settlement; and cralaw:red
(g)
Such other
matter as may aid in the prompt disposition of the action.cralaw:red
Sec. 13. Effect
of Failure to File Pre-Trial 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.
Sec. 14. Appearance
of the 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
on his behalf fully authorized in writing to enter into an amicable
settlement
and to enter into stipulations or admissions of facts and of documents.cralaw:red
Sec. 15. Effect
of Failure to File Pre-Trial Brief or to Appear in the Pre-trial
Conference. —
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 allow the complainant to present his evidence ex-parte and the
Bureau to render judgment on the basis thereof.cralaw:red
Sec. 16. 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.cralaw:red
Sec. 17. 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.
Rule
3
POWERS OF
HEARING
OFFICERS
Section
1. Powers
of Hearing Officers. — (a) A Hearing Officer conducting the hearing
and investigating shall be empowered to administer oaths and
affirmations;
issue subpoena and subpoena duces tecum to compel attendance of
parties and witnesses and the production of any book, paper, document,
correspondence and other records which are material to the case; grant
provisional remedies in accordance with these Regulations and the Rules
of Court; and make preliminary rulings on questions raised at the
hearings,
with the ultimate decision on the merits of all the issues involved
being
left to the Director.cralaw:red
(b)
Furthermore,
a Hearing Officer as alter ego of the Director, shall have the power to
cite a party or counsel or any person in contempt in accordance with
these
Regulations.
The Hearing
Officer
shall likewise have the power to pass upon and approve bonds and
counterbonds
that may be posted by the parties; the bond or counterbond shall be in
the form of cash, cashier's or manager's check issued in the name of
the
Intellectual Property Office.cralaw:red
Sec. 2. Service
of Subpoena. — Service of Subpoena shall be made at least three (3)
calendar days before the scheduled hearing so as to allow the witness
reasonable
time for preparation and travel to the place of attendance.cralaw:red
Sec. 3. Quashing
a Subpoena Duces Tecum. — The Hearing Officer, upon motion made
before
the time specified in a subpoena duces tecum for compliance
therewith,
may quash the subpoena if it is unreasonable or the relevance of the
books,
papers, documents, correspondence and other records does not appear, or
if the persons on whose behalf the subpoena is issued fails to advance
the reasonable cost of the production thereof.
Rule
4
PRELIMINARY
ATTACHMENT
Section
1. Grounds
Upon Which Attachment May Issue. — At the commencement of the
action
or at any time before entry of judgment, a complainant or any proper
party
may have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the following
cases:chanrobles virtual law library
(a) In an
action
against a party who has been guilty of fraud in procuring the
registration
of a mark in the Office by false or fraudulent declaration or
representation,
whether oral in writing, or by any false means;
(b) In
an action
against a party who has employed deception or any other means contrary
to good faith by which he shall pass off the goods manufactured by him
or in which he deals or his business or services for those of the one
having
established such goodwill, or who shall commit any act calculated to
produce
said result whether or not a mark is involved;
(c) In
an action
against a party who does not reside and is not found in the
Philippines,
or on whom summons may be served by publication;
(d) In
an action
for the recovery of a specified amount of money or damages on a cause
of
action arising from a violation of the IP
Code against a party who is about to depart from the Philippines
with
intent to evade the execution of judgment; or
(e) In
an action
against a party who has removed or disposed of his property, or is
about
to do so, with intent to defraud the aggrieved party.cralaw:red
Sec. 2. Issuance
and Contents of Order. — An order of attachment may be issued
either
ex-parte upon motion with notice and hearing conducted by the Hearing
Officer.
The Hearing Officer shall determine whether the attachment sought is
meritorious
or not. Should an order of attachment be issued by the Hearing Officer,
he shall sign and forward the order to the Director who shall direct
without
delay, the officer or such other designated employee of the Bureau to
attach
so much of the property in the Philippines of the party against whom it
is issued, not exempt from execution, as may be sufficient to satisfy
the
applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order,
which
may be amount sufficient to satisfy the applicant's demand or the value
of the property to be attached as stated by the applicant, exclusive of
costs.
Sec. 3. Affidavit
and Bond Required. — An order of attachment shall be granted only
when
it appears by the affidavit of the applicant, or of some other person
who
personally knows the facts, that a sufficient cause of action exists,
that
the case is one of those mentioned in Section 1 hereof, that there is
no
other sufficient security for the claim sought to be enforced by the
action,
and that the amount due to the applicant, to the value of the property
the possession of which he is entitled to recover, is an much as the
sum
for which the order is granted above all legal counterclaims. The
affidavit
and the receipt evidencing payment of the bond must be duly filed with
the Hearing Officer and forwarded to the Office of the Director before
the order issues.cralaw:red
Sec. 4. Condition
of Applicant's Bond. — The party applying for the order must give a
bond executed to the adverse party in the amount fixed by the Hearing
Officer
in his order granting the issuance of the writ conditioned that the
applicant
will pay all the costs which may be adjudged to the adverse party and
all
damages which he may sustain by reason of the attachment, if the
Hearing
Officer shall finally adjudged that the applicant was not entitled
thereto.cralaw:red
Sec. 5. Manner
of Attaching Property. — The officer enforcing the writ shall,
without
delay and with all reasonable diligence, attach, to await judgment and
execution in the action, only so much of the property in the
Philippines
of the party against who, the writ is issued, not exempt from
execution,
as may be sufficient to satisfy the applicant's demand, unless the
former
files a counterbond, in an amount equal to the bond fixed by the
Hearing
Officer in the order of attachment or to the value of the property to
be
attached, exclusive of costs. No levy on attachment pursuant to the
writ
shall be enforced unless it is preceded, or accompanied by service of
summons,
together with a copy of the complaint, the application for attachment,
the applicant's affidavit and bond, and the order and writ of
attachment
on the defendant within the Philippines.cralaw:red
The
requirement
of prior or contemporaneous service of summons shall not apply where
the
summons could not be served personally or by substituted service
despite
diligent efforts, or the defendant is a resident of the Philippines
temporarily
absent therefrom, or the defendant is a non-resident of the Philippines.cralaw:red
Sec. 6. Sheriff's
Return. — (a) After enforcing the writ, the sheriff must likewise,
without delay, make a return thereon to the Hearing Officer from whom
the
writ issued, with a full statement of his proceeding under the writ and
a complete inventory of the property attached, together with any
counterbond
given by the party against whom attachment is issued, and serve copies
thereof on the applicant.cralaw:red
(b) The
sheriff
shall submit a report to the Hearing Officer on the action taken on all
writs and processes assigned to them within twenty (20) days from
receipt
of said process or writ. Said report shall form part of the records of
the case.cralaw:red
(c) At
the end
every month, said Hearing Officer shall submit a report to the Director
indicating therein the number of writs and processes issued and served,
as well as the number of writs and processes unserved during the month
and the names of the sheriffs who executed each writ. Unserved writs
and
processes shall be explained in the report.cralaw:red
Sec. 7. What
may be the Subject of Attachment and the Manner of Executing the Same. —
The following properties may be the subject of attachment:chanrobles virtual law library
(a) Real
Properties.
— Real properties, or the machineries that may be found inside the
premises
belonging to the party against whom the writ is issued, or any interest
therein, by filing with the Registry of Deeds a copy of the order,
together
with a description of the property attached, and a notice that it is
attached,
and by leaving a copy of such order, description, and notice with the
occupant
of the property, if any, or with such other person or his agent of
found
within the city or province where the property is located. The
Registrar
of Deeds must index attachments filed under this section in the name of
the applicant, the adverse party, or the person by whom the property is
held or in whose name it stands in the records. If the attachment is
not
claimed in the entire area of the land covered by the certificate of
title,
a description sufficiently accurate for the identification of land or
interest
to be affected shall be included in the registration of such attachment.
(b) Personal
Properties. — Those personal properties capable of manual
delivery,
by taking such properties after issuing the corresponding receipt
therefore.
The sheriff shall thereafter deliver the attached properties to the
complainant
or proper party who shall be responsible for the custody, safekeeping,
preservation, and the inventory and return of said properties to the
other
party or proper party upon termination of the case.cralaw:red
(c) Shares
of
Stocks. — Shares of stocks or an interest in shares of stocks of
any
corporation or company, by leaving with the president or managing agent
thereof, a copy of the writ, and a stating that the stock or interest
of
the party against whom the attachment is issued is attached in
pursuance
of such writ.cralaw:red
Sec. 8. When
Attached
Property May Be Sold After Levy on Attachment and Before Entry of
Judgment. —
Whenever it shall be made to appear to the Hearing Officer, upon
hearing
with notice to both parties, that the property attached is perishable,
or that the interests of all the parties to the action will be
subserved
by the sale thereof, the Hearing Officer may order such property to be
sold at public auction in such manner as he may direct, and the
proceeds
of such sale to be deposited as the Director may prescribe to await the
judgment in the action.
Sec. 9. Discharge
of Attachment Upon Giving Counterbond. — After a writ of attachment
has been enforced, the party whose property has been attached, or the
person
appearing on his behalf, may move for the discharge of the attachment
wholly
or in part on the security given. The Hearing Officer shall, after due
notice and hearing, order the discharge of the attachment if the movant
makes a cash deposit, or files a counterbond with the Office of the
Director
in an amount equal to that fixed by the Hearing Officer in the order of
attachment, exclusive of costs. But if the attachment sought to be
discharged
is with respect to a particular property, the counterbond shall be
equal
to the value of that property as determined by the Hearing Officer. The
case deposit or the counterbond shall secure the payment of any
judgment
that the attaching party may recover in the action. A notice of the
deposit
shall forthwith be served in the attaching party. Upon the discharged
of
an attachment is accordance with the provisions of this section, the
property
attached, or the proceeds of any sale thereof, shall be delivered to
the
party making the deposit or filing the counterbond, or to the person
appearing
on his behalf, the deposit or counterbond aforesaid standing in place
of
the property so released. Should such counterbond for any reason be
found
to be or become, insufficient, and the party furnishing the same fails
to file a additional counterbond, the attaching may apply for a new
order
of attachment.cralaw:red
Sec. 10. Discharge
of Attachment on Other Grounds. — The party whose property has been
ordered attached may file a motion with the Hearing Officer before whom
the case is pending, before or after levy or even after release of the
attached property, for an order to set aside or discharge the
attachment
on the ground that the same was improperly or irregularly issued or
enforced,
or that the bond is insufficient, or that the property being attached
is
exempt from execution. If the attachment is excessive, the discharge
shall
be limited to the excess. If said motion be made on affidavit, the
attaching
party may oppose the same by counter-affidavit or other evidence in
addition
to that on which the attachment was made. After due notice and hearing,
the Hearing Officer shall order the setting aside or the discharge of
the
attachment if it appears that it was improperly or irregularly issued
or
enforced, or that the bond is insufficient, or that the attachment is
excessive,
and the defect is not cured forthwith, or the property being attached
is
exempt from execution.cralaw:red
Sec. 11. When
the Property Attached is Claimed by Third Person. — If the property
attached is claimed by a person not a party to the proceeding, as such
person makes an affidavit of his title thereto, or right to the
possession
thereof, and serves such affidavit upon the sheriff and a copy thereof
upon attaching party, the sheriff shall not be bound to keep the
property
under attachment unless the attaching party or his agent, on demand of
the sheriff shall file a bond approved by the Hearing Officer to
indemnify
the third party claimant in a sum not less than the value of the
property
levied upon. In case of disagreement as to such value, the same shall
be
decided by the Director. No claim for damages for the taking of keeping
the property may be enforced against the bond unless the action
therefor
is filed within sixty (60) days from the date of the filing of the bond.cralaw:red
The
sheriff shall
not be liable for damages for taking or keeping of such property, to
any
such third party claimant, if such bond shall be filed. Nothing therein
contained shall prevent such claimant or any third person from
vindicating
his claim to the property, or prevent the attaching party from claiming
damages against a third party claimant who filed a frivolous or plainly
spurious claim, in the same or in separate action.cralaw:red
Sec. 12. Satisfaction
of Judgment out of Property Attached; Sheriff's Return. — If
judgment
be recovered by the attaching party and execution issue thereon, the
sheriff
may cause the judgment to be satisfied out of the property attached, if
it be sufficient for that purpose in the following manner:chanrobles virtual law library
(a) By
paying
to the judgment obligee the proceeds of all sales of perishable or
other
property sold in pursuance of the order of the Bureau, or so much as
shall
be necessary to satisfy the judgment;
(b) If
any balance
remains due, be selling so much of the property, real or personal, as
may
be necessary to satisfy the balance, if enough property remain in the
sheriff's
hands for that purpose, or in those of the Office of the Director.cralaw:red
The sheriff
shall
forthwith make a return to the Hearing Officer of his proceedings under
this Section and furnish the parties with copies thereof.
Sec. 13. Balance
Due Collected Upon an Execution; Excess Delivered to Judgment Obligor. —
If after realizing upon all the property attached, applying the
proceeds
to the satisfaction of the judgment, less the expenses of proceedings
upon
the judgment, any balance shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution. Whenever the judgment
shall have been paid, the sheriff, upon reasonable demand, must return
to the judgment obligor the attached property remaining in his hands,
and
any proceeds of the sale of the property attached not applied to the
judgment.cralaw:red
Sec. 14. Disposition
of Money Deposited. — Where the party against whom attachment had
been
issued has deposited money, it shall be applied under the direction of
the Director of the satisfaction of any judgment rendered in favor of
attaching
party, and after satisfying the judgment balance shall be refunded to
the
depositor or his assignee. If the judgment is in favor of the party
against
whom attachment was issued, the whole sum deposited must be refunded to
him or his assignee.cralaw:red
Sec. 15. Disposition
of Attached Property Where Judgment is of Party Against Whom Attachment
was Issued. — If judgment be rendered against the attaching party,
all the proceeds of sales and money collected or received by the
sheriff,
under the order of attachment and all properly attached remaining in
such
officer's hands, shall be delivered to the party against whom the
attachment
was issued, and the order of attachment discharged.cralaw:red
Sec. 16. Claim
for Damages on Account of Improper, Irregular or Excessive Attachment.
— An application for damages on account of improper, irregular or
excessive
attachment must be filed with the Director before the trial or before
appeal
is perfected or before the judgment becomes executory, with due notice
to the attaching party, setting forth the facts showing his right to
damages
and the amount thereof. Such damages may be awarded only after proper
hearing
and shall be included in the judgment to the main case.cralaw:red
If, on
appeal,
the judgment of the Director-General be favorable to the party against
whom the attachment was issued, the latter may claim damages sustained
during the pendency of the appeal by filing an application in the
Office
of the Director-General, with notice to the party in whose favor the
attachment
was issued, before the judgment of the Director-General becomes
executory.
The Director-General may remand the application to the Bureau for
hearing
and decision.cralaw:red
Nothing
herein
contained shall prevent the party against whom the attachment was
issued
from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the
bond
or deposit given by the latter be insufficient or fail to fully satisfy
the award.
Rule
5
PRELIMINARY
INJUNCTION
Section
1. Preliminary
injunction defined; who may grant. — preliminary injunction is an
order
granted at any stage of an action or proceeding prior to the judgment
or
final order, requiring a party to an administrative case or any third
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
preliminary
mandatory injunction.cralaw:red
A
preliminary injunction
may be granted by the Hearing Office who is hearing the case but no
such
power can be exercised as against a concurrent court of other Office
which
has already acquired jurisdiction over the subject matter.cralaw:red
Sec. 2. Grounds
for Issuance of Preliminary Injunction. — A preliminary injunction
may be granted when it is established:chanrobles virtual law library
(a) That
the applicant
is entitled to the relief demanded, and the whole or part of such
relief
consists in restraining the commission or continuance of the act or
acts
complained of, or in requiring the performance of an act or acts,
either
for a limited period of perpetually:chanroblesvirtuallawlibrary
(b)
That the commission,
continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or
(c)
That a party
or any person is doing, threatening, or is attempting to do, or is
procuring
or suffering to be done, some act or acts probably in violation of the
rights of the applicant respecting the subject to the action or
proceeding
and tending to render the judgment ineffectual.cralaw:red
Sec. 3. Verified
Application and Bond for Preliminary Injunction or Temporary
Restraining
Order. — A preliminary or temporary restraining order may be
granted
only when:chanroblesvirtuallawlibrary
(a) The
application
in the action or proceeding is verified and shows facts entitling the
applicant
to the relief demanded;
(b)
Unless exempted,
the applicant files with the Bureau a bond executed to the party or
person
enjoined in an amount to be fixed by the Hearing Officer, to the effect
that the applicant will pay to such party or person all damages which
the
latter may sustain by reason of the injunction or temporary restraining
order if the Hearing Officer should finally decide that the applicant
was
not entitled thereto. Upon approval of the requisite bond, a writ of
preliminary
injunction shall be issued;
(c)
When an applicant
for a writ of preliminary injunction or a temporary restraining order
is
included in a complaint or any initiatory pleading, the case shall be
raffled
only after notice to and in the presence of the adverse party or the
person
to be enjoined. In any event, such notice shall be preceded, or
accompanied
by service of summons, together with a copy of complaint or initiatory
pleading and the applicant's affidavit and bond upon the adverse party
in the Philippines. However, where the summons could not be served
personally
or by substituted service despite diligent efforts, or the adverse
party
is a resident of the Philippines temporarily absent therefrom or is a
nonresident
thereof, the requirement of prior or contemporaneous service of summons
shall not apply.cralaw:red
(d) The
application
for a temporary restraining order shall thereafter be acted upon only
after
all the parties are heard in a summary hearing which shall be conducted
within twenty-four (24) hours after the sheriff's return of service
and/or
the records are received by the Hearing Officer to whom the case was
raffled
and to whom the records shall be transmitted immediately.cralaw:red
If it shall
appear
from the facts shown the great or irreparable injury would result to
the
applicant, the Hearing Office to whom the application for preliminary
injunction
was made, may issue temporary restraining order to be effective only
for
a period of twenty (20) days from service on the party or person sought
to be enjoined, except as herein provided. Within said twenty day
period,
the Hearing Officer must order said party or person to show cause at a
specified time and place, why the injunction should not be granted,
determine
within the same period whether or not the preliminary injunction shall
be granted, and accordingly issue the corresponding order.
Sec. 4. Preliminary
Injunction not Granted Without Notice; Exception. — No preliminary
injunction shall be granted without hearing and prior notice to the
party
or person sought to enjoined. Should the petition be granted after
compliance
with the requirement of due process, the Hearing Officer shall be issue
an order enjoining the party against whom it is issued from further
committing
acts detrimental or injurious to the application effective for a period
of time not exceeding ninety (90) days as may be determined by the
Hearing
Officer with the concurrence of the Director without prejudice to the
filing
of a counterbond as provided in subsequent sections.cralaw:red
Sec. 5. Grounds
for Objections to, or for Motion of Dissolution of, Injunction or
Restraining
Order. — The application for injunction or restraining order may
be
denied, upon showing of its insufficiency. The injunction or
restraining
order may also be denied, or if granted, may be dissolved, on other
grounds
upon affidavit of the party or person enjoined, which may be opposed by
the applicant also by affidavit. It may further be denied, or, if
granted,
may be dissolved, if it appears after hearing that although the
applicant
is entitled to the injunction or restraining order, the issuance
continuance
thereof, as the case may be, would cause irreparable damage to the
party
or person enjoined while the applicant can be fully compensated for
such
damages as he may suffer, and the former files bond in an amount fixed
by the Hearing Officer conditioned that he will pay all damages which
the
applicant may suffer by the denial or the dissolution of the injunction
or restraining order. If it appears that the extent of the preliminary
injunction or restraining order granted is to great, it may be modified.cralaw:red
Sec. 6. When
Final Injunction Granted. — If after the trial of the action it
appears
that the applicant is entitled to have the act or acts complained of
permanently
enjoined, the Hearing Officer shall grant a final injunction
perpetually
restraining the party or person enjoined from further commission of the
act or acts or confirming the preliminary mandatory injunction.
Rule
6
CONTEMPT
Section
1. Direct
Contempt Punished Summarily. — A person guilty of misbehavior in
the
presence of or so near the Director or Hearing Officer as to obstruct
or
interrupt the proceedings before him, including disrespect toward the
Director
or Hearing Officer, offensive personalities toward others, or refusal
to
be sworn to or answer as a witness, or to subscribe to an affidavit or
deposition when lawfully required to do so, may be summarily adjudged
in
contempt by the Director or Hearing Officer and punished by fine not
exceeding
Two Thousand Pesos (P2,000.00) or imprisonment not exceeding ten (10)
days,
or both.cralaw:red
Sec. 2. Indirect
Contempt to be Punished After Charge and Hearing. — After a charge
in writing has been filed, and an opportunity given to the respondent
to
be heard by himself or counsel, a person guilty of any of the following
acts may be punished for contempt by the Director:chanrobles virtual law library
(a)
Disobedience
of or resistance to a lawful writ, process, order, judgment, or command
of the Hearing Officer, or injunction granted by him;
(b) Any
abuse or
unlawful interference with the process or proceedings of the Bureau,
not
constituting direct contempt under Section 1 of this Rule;
(c) Any
improper
conduct tending, directly or indirectly, to impede, obstruct, or
degrade
the administration of justice or the performance of the Bureau's proper
function;
(d)
Failure to
obey a subpoena duly served;
(e) The
rescue,
or attempted rescue, of a person or property in the custody of an
officer
by virtue of an order or process of a court held by him; or
(f) The
submission
of a false certification, without prejudice to the filing of the
appropriate
civil and/or criminal action, or non-compliance with any undertaking
regarding
commencement of actions.cralaw:red
But nothing
in this
section shall be so construed as to prevent the Director from issuing
process
to bring the respondent party into or before the Bureau, or from
holding
him in custody pending such proceedings.
Sec. 3. Contempt
Proceedings. — Proceedings for indirect contempt may be initiated
motu
proprio by the Bureau by an order or any other formal charge requiring
the respondent to show cause why he should not be punished for contempt.cralaw:red
In all
other cases,
charges for indirect contempt shall be commenced by a verified petition
with supporting particulars and certified true copies of documents or
papers
involved therein, and upon full compliance with the requirements for
filing
initiatory pleadings for civil actions. If the contempt charges arose
out
of are related to principal action pending in the Bureau, the petition
shall be docketed, heard, and decided separately, unless the Bureau in
its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision.cralaw:red
Sec. 4.
Hearing;
Release on Bail. — If the hearing is not ordered to be had
forthwith,
the respondent may be released from custody upon filing a bond, in an
amount
fixed by the Director or Hearing Officer, for his appearance to answer
the charge. On the day set for the hearing, the Director of Hearing
Officer
shall proceed to investigate the charge and consider such answer or
testimony
as the respondent may make or offer.cralaw:red
Sec. 5. Punishment
for Indirect Contempt. — If the respondent is thereupon adjudged
guilty
of indirect contempt committed, he may be punished by a fine not
exceeding
Thirty Thousand Pesos (P30,000.00) or imprisonment of not more than six
(6) months, or both, and if the contempt consists in the violation of
an
injunction, he may also be ordered to make a complete restitution to
the
party injured by such violation.cralaw:red
Sec. 6. Imprisonment
Until Order Obeyed. — When the contempt consists in the omission
to
do an act which is yet in the power of the respondent to perform, he
may
be imprisoned by order of the Hearing Officer until he performs it.cralaw:red
Sec. 7. Proceedings
When Party Released on Bail Fails to Answer. — When a respondent
released
on bail fails to appear on the date fixed for the hearing, the Hearing
Officer may issue another order of arrest may order the bond for his
appearance
to be prosecuted, or both; and, if the bond be prosecuted, the measure
of damages shall be the extent of the loss or injury sustained by the
aggrieved
party, by reason of misconduct for which the contempt was prosecuted,
and
the costs of the proceedings, and such recovery shall be for the
benefit
of the party injured. But if there is no aggrieved party, the bond
shall
be liable and disposed of as in criminal cases.cralaw:red
Sec. 8. Hearing
Officer May Release Respondent. — The Director of the Hearing
Officer
may discharge from imprisonment a person imprisoned for contempt when
it
appears that public interest will not suffer thereby.cralaw:red
Sec. 9. Review
of Judgment or Order by the Director. — The judgment or order of
the
Hearing Officer made in a case of direct contempt punished after
written
charge and hearing may be reviewed by the Director, but execution of
the
judgment or order shall not be suspended until a bond is filed by the
person
in contempt, in an amount fixed by the Hearing Officer conditioned
until
that if the appeal be decided against him he will abide by and perform
the judgment or order.
Rule
7
CALENDAR
AND
ADJOURNMENTS
Section 1.
Trial
Calendar. — The staff clerk shall have a trial calendar for the
cases
that have passed pre-trial stage. Cases where there is a prayer for
preliminary
mandatory injunction and/or attachment shall be given preference.cralaw:red
Sec. 2. Notice
of Trial. — Upon entry of a case in the trial calendar, the staff
clerk
shall cause a notice of the date of its trial to be served upon the
parties
within three (3) days by the process server.cralaw:red
Sec. 3. Continuous
Trial. — All hearings shall be continuous until the case is
terminated
subject to exceptions provided under Section 2 of Rule 9.cralaw:red
Sec. 4. Raffle
of Cases. — Actions which are to be conducted before this Bureau
shall
be raffled to the different Hearing Officers who shall thereafter
handle
the proceeding from its commencement until its final resolution.
However,
should the Hearing Officer to whom the case was raffled be unavailable
during any scheduled hearing, upon request of either counsel, the
Director
shall designate an appropriate officer to preside or conduct the
proceedings.
Rule
8
DEPOSITIONS
AND DISCOVERIES
Section
1. Deposition
pending action. — By leave of the Hearing Officer after the Answer
has been filed, the testimony of any person, whether a party or not,
may
be taken, at the instance of any party, by deposition upon written
interrogatories.
The attendance of witness through a subpoena may be compelled under
Section
2(d) of Rule VI.cralaw:red
Sec. 2. Effect
of Taking Deposition. — A party shall not be deemed to make a
person
his own witness for any purpose by taking his deposition.cralaw:red
Sec. 3. Stipulation
Regarding Taking of Deposition. — If the parties so stipulate in
writing,
depositions may be taken before any person authorized to administer
oaths,
at anytime or place, in accordance with the Rules
of Court, and when so taken may be used like other depositions.cralaw:red
Sec. 4. Period
Within Which to Submit Answers to Written Interrogatories. — Should
a party request to take the deposition of a non-resident in a foreign
land,
the answer to such written interrogatories must be submitted to the
Hearing
Officer handling the case within six (6) months from the date of
issuance
of the Letters Commission, without extension. Failure to submit the
same
within the period shall result in the striking off of said deposition
and
the affidavits of such deponent.
Rule
9
HEARING
Section
1. Trial
of Cases. — The Hearing Officer shall, as far as practicable, set
the
case for successive and continuous daily hearing for the reception not
only of the evidence in chief but also on any provisional remedy prayed
for in the complaint or petition: Provided, however, that the
hearing
of the case on the merits or the reception of evidence of the parties
shall
be terminated within ninety (90) days, thirty (30) days to be allotted
to complainant's or petitioner's evidence, thirty (30) days for
respondent,
and thirty (30) days for any rebuttal and sur-rebuttal evidence. In the
case of provisional remedies, the hearings or reception of evidence
thereof
shall be terminated within thirty (30) days.cralaw:red
Sec. 2. Postponement
of Hearings. — Postponement of hearings shall be allowed only on
extremely
meritorious grounds provided, that the reception of evidence of the
parties
shall not exceed the periods provided under the preceding section.cralaw:red
Sec. 3. Order
of Trial. — Unless the Hearing Officer, for special reasons,
otherwise
directs, the order of trial shall be as follows:chanrobles virtual law library
(a) The
complainant
or petitioner must produce evidence in support of his allegations in
the
complaint or petition. The affiant/witnesses whose affidavits were
submitted
must be subject to a cross examination by the opposing counsel on the
basis
of their affidavits.
(b) The
respondent
shall then offer evidence in support of his defense, counterclaim,
cross-claim,
and third-party claim subject to cross-examination by complainant or
petitioner
or his counsel.cralaw:red
(c) The
third party-respondent,
if any, shall introduce evidence of his defense, counterclaim,
cross-claim
and third party claim.cralaw:red
(d) The
fourth
party, and so forth, if any, shall introduce evidence of the material
facts
pleaded by him.cralaw:red
(e) The
parties
against whom any counterclaim or cross-claim has been pleaded shall
introduce
evidence in support of their defense, in the order to be prescribed by
the Hearing Officer.cralaw:red
(f) The
parties
may then respectively offer rebutting evidence only, unless the Hearing
Officer, for good reasons, in the furtherance of justice, permits them
to offer additional evidence pertinent to the original issue.cralaw:red
(g)
When the presentation
of evidence is concluded, the parties may submit their respective
memoranda
within ten (10) days from date of the last hearing. Unless otherwise
provided
for by special laws, the appropriate final pleading required of the
parties
to be submitted shall include a draft of the decision/resolution they
seek,
stating clearly and distinctly the facts and the law upon which it is
based.
The Hearing Officer may adopt, in whole or in part, either of the
parties'
draft decisions/resolutions, or reject both. This requirement shall
likewise
be applied to orders other than final judgment.cralaw:red
Sec. 4. Agreed
Statements of Facts. — (a) The complainant and the respondent may
agree
in writing upon the facts involved in the action, and ask judgment upon
the facts agreed upon, without the introduction of evidence. The
Hearing
Officer shall immediately prepare the decision and submit it to the
Division
Chief of the Administrative Complaints Division who shall recommend the
same to the Director for his approval, if the agreed statement of facts
is sufficient to support a decision.
(b) If
the parties
can agree only on some of the facts in issue, a hearing shall be held
as
to the others.cralaw:red
Sec. 5. Period
for Resolving Cases. — Unless a different period is fixed by
special
laws, all contested cases or any incident thereof shall be decided or
resolved
within thirty (30) calendar days from submission for decision or
resolution
by the Bureau.cralaw:red
Sec. 6. Consolidation.
— When actions involving a common question of law or fact are pending
before
the Bureau, the Hearing Officer may order a joint hearing or trial on
any
or all the matters in issue in the actions. It may order all the
actions
consolidated and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.
Rule
10
EVIDENCE
Section
1. Evidence
Required. — Substantial evidence shall be sufficient to support
decision
or order. A fact may be deemed established if it is supported by
substantial
evidence. It means such relevant evidence which a reasonable mind might
accept as adequate to support or justify a conclusion.cralaw:red
Sec. 2. Documentary
Evidence. — Documentary evidence may be received in the form of
copies
or excerpts, if the original is not readily available. Upon request,
the
parties shall be given opportunity to compare the copy with the
original.
If the original is in the custody of a public officer, a certified copy
thereof may be accepted.cralaw:red
Sec. 3. Director
or Hearing Officer not Bound by Technical Rules of Evidence. — The
Director or Hearing Officer shall receive relevant and material
evidence,
rule on offer of evidence and exclude all irrelevant matters, and shall
act according to justice and fairness. The Bureau, in the exercise of
its
power to hear cases within its jurisdiction shall not be strictly bound
by the technical rules of evidence. The Bureau shall, however, take
judicial
cognizance of the official acts of the legislative, executive and the
judicial
departments of the Philippines, the laws of nature, scientific facts as
published in treatises, periodicals, or pamphlets and other facts which
are of public knowledge or general knowledge as would enable the
Director
or Hearing Officer to rule upon the technical issues in the case.cralaw:red
Sec. 4. Burden
of Proof in Process Patents. — If the subject matter of a patent is
a process for obtaining a product, any identical product shall be
presumed
to have been obtained through the use of the patented process if the
product
is new or there is substantial likelihood that the identical product
was
made by the process and the owner of the patent has been unable despite
reasonable efforts, to determine the process actually used. In ordering
the defendant to prove that the process to obtain the identical product
is different from the patented process, the Director shall adopt
measures
to protect, as far as practicable, his manufacturing and business
secrets.cralaw:red
Sec. 5. Power
to Stop Further Evidence. — The Hearing Officer may stop the
introduction
of further testimony upon any particular point when the evidence is
already
so full that more witness to the same point cannot be reasonably
expected
to be additionally persuasive. The Hearing Officer, however, should
exercise
this power with caution so as not to cause manifest injustice to the
parties.cralaw:red
Sec. 6. Equitable
Principles to Govern Proceedings. — In all cases involving
intellectual
property rights, the equitable principles of laches, estoppel, and
acquiescence
where applicable, may be considered and applied.
Rule
11
DECISIONS
AND
ORDERS
Section
1. Rendition
of Decision. — (a) The case is deemed submitted for resolution upon
termination of the period for reception of evidence provided in Section
1 of Rule 9 and the evidence formally offered. Whether or not the
parties
submit a final pleading such as memorandum, the case shall be decided
by
the Bureau within thirty (30) calendar days from submission as provided
herein.
All
decisions
determining the merits of cases shall be in writing, stating clearly
and
distinctly the facts and law on which they are based and signed by the
Director.cralaw:red
(b)
Decisions and
final orders shall be saved by mail, personal service or publication as
the case may require.
Rule
12
ADMINISTRATIVE
PENALTIES AND SANCTIONS
Section
1. Administrative
Penalties Imposable. — After formal investigation, the Director,
may
impose one (1) or more of the following administrative penalties:chanrobles virtual law library
(a)
Issuance of
a cease and desist order which shall specify the acts that the
respondent
shall cease and desist from and shall require him to submit a
compliance
report within a reasonable time which shall be fixed in the Order;
(b) The
acceptance
of a voluntary assurance of compliance or discontinuance as may be
imposed.
Such voluntary assurance may include one or more of the following:chanroblesvirtuallawlibrary
(i) An
assurance
to comply with the provisions of the Intellectual
Property Law violated;
(ii)
An assurance
to refrain from engaging in unlawful and unfair acts and practices
subject
of the formal investigations;
(iii)
An assurance
to recall, replace, repair or refund the money value of defective goods
distributed in commerce;
(iv)
An assurance
to reimburse the complainant the expenses and costs incurred in
prosecuting
the case in the Bureau.cralaw:red
The
Director may
also require the respondent to submit periodic compliance reports and
file
a bond to guarantee compliance of his undertaking.cralaw:red (c) The
condemnation
or seizure of products which are subject of the offense. The goods
seized
hereunder shall be disposed of in such manner as may be deemed
appropriate
by the Director, such as by sale, donation to distressed local
government
units or charitable or relief institutions, exportation recycling into
other goods, or any combination thereof, under such guidelines as he
may
provide;
(d) The
forfeiture
of paraphernalia and all real and personal properties which have been
used
in the commission of the offense.cralaw:red
(e) The
imposition
of administrative fines in such amount as deemed reasonable by the
Director,
which shall in no case be less than Five Thousand Pesos (P5,000.00) nor
more than One Hundred Fifty Thousand Pesos (P150,000.00). In addition,
an additional fine of not more than One Thousand Pesos (P1,000.00)
shall
be imposed for each day of continuing violation;
(f) The
cancellation
of any permit, license, authority, or registration which may have been
granted by the Office, or the suspension of the validity thereof for
such
period of time as the Director may deem reasonable which shall not
exceed
one (1) year.cralaw:red
(g) The
withholding
of any permit, license, authority or registration which is being
secured
by the respondent from the Office;
(h) The
assessment
and award of damages;
(i)
Censure
(j)
Other analogous
penalties or sanctions such as those provided under Section 21 of Republic
Act No. 8293.cralaw:red
Rule 13
JUDGMENTS,
FINAL ORDERS AND ENTRY THEREOF
Section
1. Rendition
of Judgment and Final Orders. — A judgment or final order
determining
the merits of the case shall be in writing, stating clearly and
distinctly
the facts and the law on which it is based, signed by the Director, and
filed with the appropriate Register of the Office.cralaw:red
Sec. 2. Entry
of judgments and Final Orders. — If no appeal is filed within the
time
provided in these Regulations, the Director shall forthwith cause the
entry
of the judgment or final order in the appropriate Register of the
Office.
The date of finality of the judgment or final order shall be deemed to
be the date of its entry. The record shall contain the dispositive part
of the judgment or final order and shall be signed by the Director,
with
a certificate that such judgment or final order has become final and
executory.cralaw:red
Sec. 3. Order
and Writ of Execution. — As soon as a decision or order has become
final and executory, the Director shall, motu proprio or on
motion
of the interested party issue an order of execution deputizing and
requiring
the appropriate officer or personnel of the office, or such other duly
authorized government agent, officer, or personnel, to execute and
enforce
said decision or order.cralaw:red
Sec. 4. Execution
Pending Appeal. — On motion of the prevailing party with notice to
the adverse party or motu proprio and upon filing of an
approved
bond, the Director may, in his discretion, order execution to issue
even
before the expiration of the time to appeal, upon good reasons to be
stated
in the order. The execution pending appeal may be stayed by the filing
of an approved counterbond in an amount to be fixed by the Director.
Rule
14
APPEAL
Section
1. Finality
of Decision and Order. — (a) The decision and order of the Director
shall become final and executory fifteen (15) days after the receipt of
a copy thereof by the party affected unless within the said period an
appeal
to the Director General has been perfected.cralaw:red
(b)
Decisions of
the Director-General shall be final and executory unless an appeal to
the
Court of Appeals or Supreme Court is perfected in accordance with the
Rules
of Court applicable to appeals from decision of Regional Trial Courts.cralaw:red
(c)
Interlocutory
orders shall not be appealable.cralaw:red
(d) No
motion for
reconsideration of the decision of the Director General shall be
allowed.cralaw:red
Sec. 2. Appeal,
How Perfected. — Appeal may be perfected by filing a Notice of
Appeal
with the Director General and the Director and a copy thereof served
upon
the adverse party within fifteen (15) days from receipt of the order or
Decision and upon payment of the corresponding docket fee.
FINAL
PROVISIONS
Section
1. Separability.
— If any provision in these Regulations or application of such
provision
to any circumstances is held invalid, the remainder of these
Regulations
shall not be affected thereby.cralaw:red
Sec. 2. Furnishing
of Certified Copies. — Mr. Eduardo Joson, Records Officer II, is
hereby
directed to immediately file three (3) certified copies of these
Regulations
with the University of the Philippines Law Center, and one (1)
certified
copy each to the Office of the President, the Senate of the
Philippines,
the House of Representatives, the Supreme Court of the Philippines, and
the National Library.cralaw:red
Sec. 3. Effectivity.
— These rules and regulations shall take effect fifteen (15) days after
publication in a newspaper of general circulation.cralaw:red
Done this
28th
day of March 2001.
Approved:
EMMA C.
FRANCISCO
Director
General
Recommended
By:
ESTRELLITA
BELTRAN-ABELARDO
Director,
Bureau
of Legal Affairs
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