GENERAL GARMENTS CORPORATION, petitioner, vs.

THE
DIRECTOR OF PATENTS and PURITAN SPORTSWEAR
CORPORATION, respondents.
FACTS:
General Garments Corp., organized and existing under the
PH laws, is the owner of the trademark PURITAN issued on Nov
15, 1962 by the Philippine Patent Office (PPO) for assorted mens
wear (sweaters, shirts, jackets, undershirts, briefs)
On March 9, 1964, PURITAN SPORTSWEAR CORP., organized
and existing under the laws of Pennsylvania, USA, filed a petition
with the PPO for the cancellation of the trademark PURITAN,
alleging: 1) ownership and prior use in the Ph of the said trademark
on the same kind of goods, which use it had not abandoned 2)
registration by Gen Garments Corp. had been obtained fraudulently
and in violation of Sec 17 (c) of RA No. 166 in relation to section 4
(d) thereof.
General Garments move to dismiss the petition on several
grounds, synthesized in one issue: Whether or not PURITAN
SPORTSWEAR CORP., which is a foreign corporation not
licensed to do business and not doing business in the Ph,
has legal capacity to maintain a suit in the PPO for
cancellation of a trademark registered therein.
Dir. Of Patents denied the motion to dismiss and likewise the
motion for reconsideration. Thus, this instant petition for review.
PETITIONERS CONTENTIONS:
1. That respondent being a foreign corporation, not licensed to do
and is not doing business in the Ph, is not considered as a person
under the PH laws and consequently is not comprehended within
the term any person who may apply for cancellation of a mark or
trade-name under Sec 17 (c) of Trademark Law
2) That under Sec 37 of the Trademark Law respondent is not
entitled to the benefits of the said law because the Ph is not a
signatory to any international treaty or convention relating to
marks or tradenames or to the repression of unfair competition.
ISSUE:
HELD:
1st CONTENTION:
Whether the respondent is a juridical person is beyond
serious dispute. The fact that it may not transact business in the Ph
unless it has obtained a license for that purpose, nor maintain a

suit in the Ph courts for the recovery of any debt, claim or demand
without such license (Secs. 69, 69, Corpo Law) does not make the
respondent any less a juridical person. The implication of the said
provision was that it was not the purpose of the legislature to
exclude a foreign corporation which happens to obtain an isolated
order for business from the Ph from securing redress in the Ph
courts.
To recognize respondent as a juridical person, does not
resolve the issue in this case. Respondent is not suing in our courts
for the recovery of ay debt, claim or demand, for which a license
to transact in the Ph is required by Sec 69 of the Corporation Law.
Respondent went to the PPO on a petition for cancellation of a
trademark registered by petitioner, invoking Sec 17 (c) in rel to Sec
4(d) of the Trademark Law.
In Western Equipment & Supply Co. vs. Reyes, it was laid
down that:
A foreign corporation which has never done business in the Ph and
which is unlicensed and unregistered to do business here, but is
wisely and favorably known in the Ph through the use therein of its
products, bearing its corporate and trade name has a legal right to
maintain an action in the islands.
The purpose of such a suit is to protect its reputation, corporate
name and goodwill which has been established through the natural
development of its trade for a long period of years, in the doing of
which it does not seek to enforce any legal contract rights arising
from, or growing out of any business which it has transacted in the
Ph Islands.
The right to the use of the corporate or trade name is a property
right, a right in rem, which it may assert and protect in any of the
courts of the world, even in jurisdictions where it does not transact
business.
Sec 17 (c) and Sec 4(d) of the Trademark Law provides:
Sec 17. Grounds for cancellation. Any person, who believes that
he is or will be damaged by the registration of a mark or tradename, may, upon the payment of the prescribed fee, apply to
cancel said registration upon any of the ff grounds:
XXXX
(c) That the registration was obtained fraudulently or
contrary to the provision of sec 4, chapt 2 thereof; XXX

Sec 4. Registration of trademarks, trade names and service marks

which shall be known as the principal register.- The owner of a
trademark, trade name and service mark used to distinguish his
goods, business or services from the goods, business or services
from the goods, business or services of others shall have the right
to register the same on the principal register, unless it:
XXXX
(d) Consists of or comprises a mark or trade name which so
resembles a mark or trade name registered in the Ph or a mark or
trade name previously used in the Ph by another and not
abandoned, as to be likely, when applied to or used in connection
with goods, business or services of the applicant, to cause
confusion or mistake or to deceive purchasers; or XXX
2nd CONTENTION:
Sec. 37. Rights of foreign registrants. Persons who
are nationals of, domiciled in, or have a bona fide or effective
business or commercial establishment in any foreign country, which
is a party to any international convention or treaty relating to
marks or trade-names, or the repression of unfair competition to
which the Ph may be a party, shall be entitled to the benefits and
subj. to the provisions of this act to the extent and under the
conditions essential to give effect to any such convention and
treating so long as Ph shall continue to be a party thereto, except
as provided in the following paragraphs of this section.
As correctly pointed out by respondents, this provision was
incorporated in the law in anticipation of the eventual adherence of
the Ph to any international convention or treaty for the protection
of industrial property.
Regardless of Sec. 37, aliens or foreign corporations are
accorded benefits under the law. Thus, Sec. 2, for instance, the
trade-marks, trade-names and service marks owned by persons,
corporations, partnerships or associations domiciled in any foreign
country may be registered in the Ph, provided that the country of
which the applicant for registration is a citizen grants by law
substantially similar privileges to citizens in the Ph.
Petition is DISMISSED. Reso of DOP, AFFIRMED.

LA CHEMISE LACOSTE, S.A., petitioner, vs. HON.

OSCAR
C.
FERNANDEZ
HEMANDAS, respondents.
FACTS:

AND

GOBINDRAM

In 1975, Hemandas & Co., a duly licensed domestic

firm applied for and was issued
Reg. No. SR-2225 (SR stands for Supplemental Register) for the
trademark "CHEMISE LACOSTE & CROCODILE DEVICE" by the
Philippine Patent Office for use on T-shirts, sportswear and other
garment products of the company. Two years later, it applied for the
registration of the same trademark under the Principal Register.
Hemandas & Co. assigned to respondent Gobindram
Hemandas all rights, title, and interest in the trademark "CHEMISE
LACOSTE & DEVICE".
On November 21, 1980, the petitioner filed its application
for registration of the trademark "Crocodile Device" (Application
Serial No. 43242) and "Lacoste" (Application Serial No. 43241). The
former was approved for publication while the latter was opposed
by Games and Garments
On March 21, 1983, the petitioner filed with the National
Bureau of Investigation (NBI) a letter-complaint alleging therein the
acts of unfair competition being committed by Hemandas and
requesting their assistance in his apprehension and prosecution.
Search warrants based on violation of Art. 189 of RPC were
issued against Hemandas
Hemandas filed a motion to quash the
search warrants
and the same was granted by the respondent court
Ratio Decidendi:
As early as 1927, this Court was, and it still is, of the view
that a foreign corporation not doing business in the Philippines

needs no license to sue before Philippine courts for infringement of

trademark and unfair competition.
Since it is the trade and not the mark that is to be protected,
a trade-mark acknowledges no territorial boundaries of
municipalities or nations, but extends to every market where the
trader's goods have become known and identified by the use of the
mark.
The case filed by petitioner is a criminal case. Since the
violation is against the State, petitioner's capacity to sue would
become, therefore, of not much significance. We cannot allow a
possible violator of our criminal statutes to escape prosecution
upon a far-fetched contention that the aggrieved party or victim of
a crime has no standing to sue.
upholding the right of the petitioner to maintain the present
suit before our courts for unfair competition or infringement of
trademarks of a foreign corporation, is recognizing our duties and
the rights of foreign states under the Paris Convention for the
Protection of Industrial Property to which the Philippines and France
are parties. Q treaty or convention is not a mere moral obligation to
be enforced or not at the whims of an incumbent head of a Ministry.
It creates a legally binding obligation on the parties founded on the
generally accepted principle of international law of pacta sunt
servanda which has been adopted as part of the law of our land.
Petitioner is the owner of the trademarks "LACOSTE",
"CHEMISE LACOSTE", the crocodile or alligator device, and the
composite mark of LACOSTE and the representation of the crocodile
or alligator. Any pretensions of the private respondent that he is the
owner are absolutely without basis.
The records show that the goodwill and reputation of the
petitioner's products bearing the trademark LACOSTE date back
even before 1964 when LACOSTE clothing apparels were first
marketed in the Philippines. To allow Hemandas to continue using
the trademark Lacoste for the simple reason that he was the first
registrant in the Supplemental Register of a trademark used in
international commerce and not belonging to him is to render
nugatory the very essence of the law on trademarks and
tradenames.
Issue of probable cause:
Probable cause has traditionally meant such facts and
circumstances antecedent to the issuance of the warrant that are in

themselves sufficient to induce a cautious man to rely upon them

and act in pursuance thereof . Probable cause "presupposes the
introduction of competent proof that the party against whom it is
sought has performed particular acts, or committed specific
omissions, violating a given provision of our criminal laws.
True, the lower court should be given the opportunity to
correct its errors, if there be any, but the rectification must be
based on sound and valid grounds. In this case, there was no
compelling justification for the about face.
Supplemental Registration
A certificate of registration in the Supplemental Register is
not prima facie evidence of the validity of registration, of the
registrant's exclusive right to use the same in connection with the
goods, business, or services specified in the certificate. Such a
certificate of registration cannot be filed, with effect, with the
Bureau of Customs in order to exclude from the Philippines, foreign
goods bearing infringement marks or trade names (Rule 124,
Revised Rules of Practice Before the Phil. Pat. Off. In Trademark
Cases)
Section 19-A of Republic Act 166 as amended not only
provides for the keepingof the supplemental register in addition to
the principal register but specifically directs
that:
"The certificates of registration for marks and trade names
registered on the supplemental register shall be conspicuously
different from certificates issued for marks and trade names
registered on the principal register."
The registration of a mark upon the supplemental register is
not, as in the case of the principal register, prima facie evidence
of...
the validity of registration;
the registrant's ownership of the mark
and the registrant's exclusive right to use the mark.
It is not subject to opposition, although it may be cancelled
after its issuance. Neither may it be the subject of interference
proceedings.
Registration on the supplemental register is not constructive
notice of registrant's claim of ownership. A supplemental register is
provided for the registration of marks which are not registrable on
the principal register because of some defects prejudicial question

The proceedings pending before the Patent Office involving

IPC Co. 1658 do not partake of the nature of a prejudicial question
which must first be definitely resolved. The case which suspends
the criminal prosecution must be a civil case which is determinative
of the innocence or, subject to the availability of other defenses,
the guilt of the accused. The pending case before the Patent Office
is an administrative proceeding and not a civil case.
In the case at bar, the Minister of Trade, as 'the competent
authority of the country of registration,' has found that among
other well-known trademarks 'Lacoste' is the subject of conflicting
claims. For this reason, applications for its registration must be
rejected or refused, pursuant to the treaty obligation of the
Philippines.
Provisions
RPC: Art. 189. Unfair competition, fraudulent registration of trademark, trade-name or service mark, fraudulent designation of origin,
and false description. The penalty provided in the next
proceeding article shall be imposed upon:
1. Any person who, in unfair competition and for the purposes of
deceiving or defrauding another of his legitimate trade or the
public in general, shall sell his goods 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 device or words thereon or in any
other features of their appearance which would be likely to induce
the public to believe that the goods offered are those of a
manufacturer or dealer other than the actual manufacturer or
dealer or shall give other persons a chance or opportunity to do the
same with a like purpose.
2. Any person who shall affix, apply, annex or use in connection
with any goods or services or any container or containers for goods
a false designation of origin or any false description or
representation and shall sell such goods or services.
3. Any person who by means of false or fraudulent representation
or declarations orally or in writing or by other fraudulent means
shall procure from the patent office or from any other office which
may hereafter be established by law for the purposes the
registration of a trade-name, trade-mark or service mark or of
himself as the owner of such trade-name, trade-mark or service
mark or an entry respecting a trade-name, trade-mark or service
mark.
Section 21-A of Republic Act No. 166
"Sec. 21-A. Any foreign corporation or juristic person to which a
mark or tradename has been registered or assigned under this Act

may bring an action hereunder for infringement, for unfair

competition, or false designation of origin and false description,
whether or not it has been licensed to do business in the
Philippines under Act numbered Fourteen Hundred and Fifty-Nine,
as amended, otherwise known as the Corporation Law, at the time
it brings the complaint; Provided, That the country of which the
said foreign corporation or juristic person is a citizen, or in which it
is domiciled, by treaty, convention or law, grants a similar privilege
to corporate or juristic persons of the Philippines."
Rule I, Sec 1 (g) Omnibus Investment Code(1)
A foreign firm which does business through middlemen acting on
their own names, such as indentors, commercial brokers or
commission merchants, shall not be deemed doing business in the
Philippines. But such indentors, commercial brokers or commission
merchants shall be the ones deemed to be doing business in the
Philippines.
"(2) Appointing a representative or distributor who is domiciled in
the Philippines, unless said representative or distributor has an
independent status, i.e., it transacts business in its name and for
its account, and not in the name or for the account of a principal.
Thus, where a foreign firm is represented by a person or local
company which does not act in its name but in the name of the
foreign firm, the latter is doing business in the Philippines."

KABUSHI KAISHA ISETAN also known and trading as

ISETAN CO., LTD., petitioner, vs. IAC, DIR. OF

PATENTS, and ISETANN DEPT. STORE, INC.,
respondents.
FACTS:
Petitioner's contention:
Kabushi Kaisha Isetan is the owner of the trademark "Isetan"
and the "Young Leaves Design". The petitioner alleges that it first
used the trademark Isetan on November 5, 1936. It states that the
trademark is a combination of "Ise" taken from "Iseya" the first
name of the rice dealer in Kondo, Tokyo in which the establishment
was first located and "Tan" which was taken from "Tanji Kosuge the
First". The trademark "Isetan" and "Young Leaves Design" were
registered in Japan covering more than 34 classes of goods. On

October 3, 1983, the petitioner applied for the registration of

"Isetan" and "Young Leaves Design" with the Philippine Patent
Office under Permanent Serial Nos. 52422 and 52423 respectively,
Defendant's contention:
Private respondent, Isetann Department Store, on the other
handclaims that it used the word "Isetann" as part of its corporate
name and on its products particularly on shirts in Joymart
Department Store sometime in January 1979. The suffix "Tann"
means an altar, the place of offering in Chinese and this was
adopted to harmonize the corporate name and the corporate logo
of two hands in cup that symbolizes the act of offering to the
Supreme Being for business blessing. Respondent registered
"Isetann Department Store, Inc." and Isetann and Flower Design in
the Philippine Patent Office under SR. Reg. Nos. 4701 and 4714,
respectively, as well as with the Bureau of Domestic Trade under
Certificate of Registration No. 32020. actions
On November 28, 1980, the petitioner filed with the Phil.
Patent Office two (2) petitions
for the cancellation of Certificates of Supplemental Registration
Nos. SR-4717 and SR-4701. The petitioner also filed with the
Securities and Exchange Commission (SEC) a petition to cancel the
mark "ISETAN" as part of the registered corporate name of Isetann
Department Store, Inc. this was however denied by the SEC.
Director of Patents dismissed the suit for cancellation of
registration filed by petitioner. IAC likewise dismissed the case.
Ratio Decidendi:
A fundamental principle of Philippine Trademarks Law is that
actual use in commerce in the Philippines is a prerequisite to the
acquisition of ownership over a trademark or a tradename.
Adoption alone of a trademark would not give exclusive right
thereto. Such right grows out of their actual use. Adoption is not
use. One may make advertisements, issue circulars, give out price
lists on certain goods; but these alone would not give exclusive
right of use. For trademark is a creation of use.
The records show that the petitioner has never conducted
any business in the Philippines. It has never promoted its
tradename or trademark in the Philippines. It has absolutely no
business goodwill in the Philippines. Under the law, it has no right
to the remedy it seeks. Any goodwill, reputation, or knowledge
regarding the name Isetann is purely the work of the private
respondent. Isetann Department Store, Inc. is the name of a store

and not of products sold in various parts of the country. There is no

product with the name "Isetann" popularized with that brand name
in the Philippines. The records show that among Filipinos, the name
cannot claim to be internationally well-known. The mere origination
or adoption of a particular tradename without actual use thereof in
the market is insufficient to give any exclusive right to its use.
Indeed, the Philippines is a signatory to this Treaty and,
hence, we must honor our obligation thereunder on matters
concerning internationally known or well known marks. However,
this Treaty provision clearly indicated the conditions which must
exist before any trademark owner can claim and be afforded rights
such as the Petitioner herein seeks and those conditions are that:
the mark must be internationally knownor well known;
the subject of the right must be a trademark, not a patent or
copyright or anything else;
the mark must be for use in the same or similar kinds of goods,
and
the person claiming must be the owner of the mark.
provisions:
Sec. 2 RA 5343
SECTION 2. Appeals to Court of Appeals. Appeals to the Court of
Appeals shall be filed within fifteen (15) days from notice of the
ruling, award, order, decision or judgment or from the date of its
last publication, if publication is
required by law for its effectivity; or in case a motion for
reconsideration is filed within that period of fifteen (15) days, then
within ten (10) days from notice or publication, when required by
law, of the resolution denying the motion for
reconsideration. No more than one motion for reconsideration shall
be allowed any party. If no appeal is filed within the periods here
fixed, the ruling, award, order, decision or judgment shall become
final and may be executed as provided by existing law.

PHILIP

MORRIS, INC., BENSON AND HEDGES

(CANADA), INC., and FABRIQUES OF TABAC
REUNIES, S.A., petitioners, vs. CA and FORTUNE
TOBACCO CORPORATION, respondents.

Facts:
Petitioner's contention:
Philip Morris and the 2 other companies as subsidiaries of
Philip Morris. The last 2 are suing on isolated transactions. As
registered owners of "MARK VII", "MARK TEN", and "LARK" per
certificates of registration issued by the Philippine Patent Office on
April 26, 1973, May 28, 1964, and March 25, 1964, plaintiffspetitioners asserted that defendant Fortune Tobacco Corporation
has no right to manufacture and sell cigarettes bearing the
allegedly identical or confusingly similar trademark "MARK" in
contravention of Section 22 of the Trademark Law, and should,
therefore, be precluded during the pendency of the case from
performing the acts complained of via a preliminary injunction

its personality to sue. Relative to this condition precedent, it may

be observed that petitioners were not remiss in averring their
personality to lodge a complaint for infringement especially so
when they asserted that the main action for infringement is
anchored on an isolated transaction.

Defendant's contention:
Fortune
Tobacco
Corporation
admitted
petitioners'
certificates of registration with the Philippine Patent Office subject
to the affirmative and special defense on misjoinder of party
plaintiffs. It claims that the word mark is a common word which
cannot be exclusively appropriated.

The fact that international law has been made part of the
law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to
national legislative enactments.

Ratio Decidendi:
There is no proof whatsoever that any of plaintiffs' products
which they seek to protect from any adverse effect of the
trademark applied for by defendant, is in actual use and available
for commercial purposes anywhere in the Philippines.

A fundamental principle of Philippine Trademark Law is that

actual use in commerce in the Philippines is a prerequisite to the
acquisition of ownership over a trademark or a tradename. In other
words, petitioners may have the capacity to sue for infringement
irrespective of lack of business activity in the Philippines on
account of Section 21-A of the Trademark Law but the question of
whether they have an exclusive right over their symbol as to justify
issuance of the controversial writ will depend on actual use of their
trademarks in the Philippines in line with Sections 2 and 2-A of the
same law.

Secondly, as shown by plaintiffs' own evidence furnished by

no less than the chief of Trademarks Division of the Philippine
Patent Office, Atty. Enrique Madarang, the abandonment of an
application is of no moment, for the same can always be refiled. He
said there is no specific provision in the rules prohibiting such
refilling.
The petitioner will not be prejudiced nor stand to suffer irreparably
as a consequence of the lifting of the preliminary injunction
considering that they are not actually engaged in the manufacture
of the cigarettes with the trademark in question and the filing of
the counterbond will amply answer for such damages.
A foreign corporation not doing business in the Philippines
may have the right to sue before Philippine Courts, but existing
adjective axioms require that qualifying circumstances necessary
for the assertion of such right should first be affirmatively pleaded.
It is not sufficient for a foreign corporation suing under Section 21-A
to simply allege its alien origin. Rather, it must additionally allege

Given these confluence of existing laws amidst the cases

involving trademarks, there can be no disagreement to the guiding
principle in commercial law that foreign corporations not engaged
in business in the Philippines may maintain a cause of action for
infringement primarily because of Section 21-A of the Trademark
Law when the legal standing to sue is alleged, which petitioners
have done in the case at hand.

It is thus incongruous for petitioners to claim that when a

foreign corporation not licensed to do business in the Philippines
files a complaint for infringement, the entity need not be actually
using its trademark in commerce in the Philippines. Such a foreign
corporation may have the personality to file a suit for infringement
but it may not necessarily be entitled to protection due to absence
of actual use of the emblem in the local market.
In view of the explicit representation of petitioners in the
complaint that they are not engaged in business in the Philippines,
it inevitably follows that no conceivable damage can be suffered by
them not to mention the foremost consideration heretofore
discussed on the absence of their "right" to be protected.

Petition dismissed

NO. Bata Industries has no Philippine goodwill that would be

damaged by the registration of the mark.

PHILIP

MORRIS, INC., BENSON AND HEDGES

(CANADA), INC., and FABRIQUES OF TABAC
REUNIES, S.A. (now known as PHILIP MORRIS
PRODUCTS S.A.), petitioners, vs. FORTUNE
TOBACCO CORPORATION, respondents.

Any slight goodwill obtained by the product before World War II was
completely abandoned and lost in the more than 35 years that
passed since Manila's liberation from Japan. The petitioner never
used the trademark either before or after the war. It is also not the
successor-in-interest of Gerbec & Hrdina and there there was no
privity of interest between them, Furthermore, the Czech trademark
has long been abandoned in Czechoslovakia.

*SEE SEPARATE PAPER

petitioner, vs. CA,

TIBURCIO S. EVALLE, DIR. OF PATENTS, NEW
OLYMPIAN
RUBBER
PRODUCTS
CO.,
INC.,

BATA

INDUSTRIES,

LTD.,

respondents.
Facts:
The respondent New Olympian Rubber Products sought to register
the mark "BATA" for casual rubber shoe products, alleging it had
used the said mark since the 1970s. The petitioner, a Canadian
corporation opposed with its allegations that it owns and has not
abandoned said trademark. The petitioner has no license to do
business in the Philippines and the trademark has never been
registered in the Philippines by any foreign entity. Bata Industries
does not sell footwear under the said trademark in the Philippines
nor does it have any licensing agreement with any local entity to
sell its product.
Evidence show that earlier, even before the World War II, Bata
shoes made by Gerbec and Hrdina (Czech company) were already
sold in the country. Some shoes made by the petitioner may have
been sold in the Philippines ntil 1948. On the other hand,
respondent spent money and effort to popularize the trademark
"BATA" since the 70's. Moreover, it also secures 3 copyright
registrations for the word "BATA". The Philippine Patent Office (PPO)
dismissed the opposition by the petitioner while the Court of
Appeals (CA) reversed said decision. However, a 2nd resolution by
the CA affirmed the PPO decision.
Issue: Does the petitioner have the right to protect its
goodwill alleged to be threatened with the registration of
the mark?

PUMA SPORTSCHUHFABRIKEN RUDOLF DASSLER,

K.G.,
petitioners,
vs.
IAC
and
MIL-ORO
MANUFACTURING CORPORATION, respondents.
Facts:
Puma filed a complaint for infringement of patent or
trademark with a prayer for the issuance of a writ of preliminary
injunction against Mil-Oro.
On July 31, 1985, the trial court issued a temporary
restraining order, restraining the private respondent and the
Director of Patents from using the trademark "PUMA' or any
reproduction, counterfeit copy or colorable imitation thereof, and to
withdraw from the market all products bearing the same
trademark.
The Court of Appeals reversed the order of the trial court
and ordered the respondent judge to dismiss the civil case filed by
the petitioner and further held that petitioner has no legal capacity
to sue under Sec. 21A of RA 166
Ratio Decidendi:
supra, as in cases of La Chemise Lacoste and Converse
Rubber Corp. issue of lis pendens
for lis pendens to be a valid ground for the dismissal of a case, the
other case pending between the same parties and having the same
cause must be a court action.
Action means an ordinary suit in a court of justice by which
one party prosecutes another for the enforcement or protection of
alright, or the prevention or redress of a wrong. Every other remedy
is a special proceeding. The Court of Appeals likewise erred in
holding that the requisites of lis pendens were present so as to
justify the dismissal of the case.