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Petitioner Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc. filed a
Petition for Cancellation seeking the cancellation of Certificate of
Registration of the service mark BLUE CROSS for distribution of hospital
care on pre-payment financing basis issued in the name of respondentsappellee Blue Cross and Blue Shield Association.
In their petition for cancellation, herein petitioner-appellants alleged that:
on July 21, 1986 Blue Cross Insurance, Inc. was registered as a business
name with the Bureau of Domestic Trade, Department of Trade and
Industry (DTI); that its certificate of registration of business name was
renewed on August 22, 1991; that as early as June 25, 1986 Blue Cross
Insurance, Inc. had adopted and commercially used the mark Blue Cross
as part of its corporate name/trade name; that to address the public
demand for health care maintenance services, the incorporators of Blue
Cross Insurance, Inc. formed Blue Cross Health Care, Inc. which was
registered with the Securities and Exchange Commission (SEC) on July 22,
1987 and registered as a business name with the DTI on August 25, 1987;
that Blue Cross Health Care, Inc. continued to commercially use the mark
BLUE CROSS as part of its corporate name/trade name since its
registration with the DTI on July 22, 1987 up to the present; that by virtue
of their prior adoption and commercial use of the mark BLUE CROSS,
Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc. had the
exclusive title to, and interest in the said service mark or trade name.
ISSUES:
- The petitioner-appellants argue that dismissing the appeal on a mere
technicality without considering the merits of the case is grave abuse of
discretion; that the presumption of the validity of registration and
ownership of the mark BLUE CROSS was debunked by the numerous
evidence presented by the petitioner-appellants.
- They underscore that the requirement of use is the foremost element,
aside from registration, that should have been considered as regards the
validity of registration and ownership of the said mark
HELD: The petition is not impressed with merit. PETITION DISMISSED.
RATIO:
- Section 2 of the Uniform Rules on Appeal states that:
- Section 2. Appeal to the Director General. The decisions or final orders
of the Bureau Director shall become final and executory thirty (30) days
after receipt of a copy thereof by the parties unless, within the same
period, a motion for reconsideration is filed with the Bureau Director or an
appeal to the Director General has been perfected; Provided, that only one
(1) motion for reconsideration of the decision or order of the Bureau
Director shall be allowed; and, in case the motion for reconsideration
is denied, the appellant or appellants has/have the balance of the
period prescribed above within which to file the appeal. (Emphasis
supplied)
- When the petitioner-appellants received a copy of the Decision dated 28
December 2007 on 18 January 2008, they had until 17 February 2008
within which to file a motion for reconsideration. Since 17 February 2008
fell on a Sunday, the appeal should be filed on the ensuing working day,
that is, 18 February 2008. A total of thirty (30) complete days have been
consumed.
- Thus, as correctly ruled by the IPO Director General, when the petitionerappellants received on 16 April 2009 the resolution denying their motion
for reconsideration, they only had one (1) day or until 17 April 2009 within
which to file their appeal memorandum.
- Consequently, their appeal memorandum which was filed on 18 May 2009
is far in excess of the 30-day period for perfecting an appeal.
- The IPO Director General correctly dismissed the appeal outright as it was
not filed within the prescribed period.
The petitioner-appellants underscore the need for actual use of the subject
service mark as a prerequisite, aside from registration, to the acquisition of
the right of ownership over it.
Against the evidence presented by the petitioners-appellants, the
respondent-appellee, aside from being a prior registrant, in fact presented
satisfactory proof of actual commercial use.
we adopt the findings and conclusion of Hon. Estrellita Beltran-Abelardo,
ratiocinated in this wise: the registrant enjoys in its favor the
presumption of validity of registration and ownership over the mark Blue
Cross.
Section 20 provides: 'Section 20. Certificate of registration prima facie
evidence of validity. - A certificate of registration of a mark or trade-name
shall be prima facie evidence of the validity of the registration, the
registrant's ownership of the mark or tradename, and of the registrant's
exclusive right to use the same in connection with the goods, business or