Paula Recaro, hereafter referred to as plaintiff, alleged that she is doing

business under the registered name and style of "BIG FIVE PRODUCTS"; that she is
the assignee and owner of the trademark "BIG FIVE 5", which is duly registered with
the Philippines Patent Office as per Registry No. 3281 dated April 29, 1952; that
since May 22, 1952, she had been using and affixing said trade-mark on the printed
labels (a facsimile of which is appended to the complaint) of her products, namely
in vegetable lard repacked for sale on retail, with which she is identified in the
mind of the public; that defendant Nestor Embisan, doing business under the name
and style "Nel-Coff Products", is, likewise, engaged in the repacking of vegetable
lard on which he uses printed labels bearing the trademark "Big Three" (a facsimile
of which is, likewise, appended to the complaint) which is not registered with said
Patent Office and is but a reproduction, a counterfeit copy or colorable imitation
of plaintiff's aforementioned registered trade-mark, to such an extent as is likely
to cause confusion or mistake or to deceive purchasers or others as to the source
or origin of such repacked products, in gross and unauthorized infringement of
plaintiff's certificate of registration; that, by giving the wrapping of his
products the general appearance of the goods sold by plaintiff, the defendant has
influenced purchasers to believe that his goods are those of the plaintiff and has
deceived the public and defrauded the plaintiff of her legitimate trade and is,
therefore, engaged in unfair competition

issue:
were there infringement and unfair competition

ruling:
We find no merit in the appeal. The affidavit and other documents, attached to
plaintiff's petition for summary judgment show that the trade-mark "BIG FIVE 5" was
duly registered with the Philippines Patent Office since April 29, 1952, for use in
packing or wrapping of Class 47, vegetable lard; that by virtue of an instrument,
dated June 1, 1954, Sy Lin, the original owner of said trade-mark, had sold,
assigned and transferred his right, title and interest thereto and to the
registration thereof, together with the goodwill of the business in connection
therewith, to plaintiff herein; and that said deed of sale, assignment and transfer
in favor of plaintiff had been duly annotated and registered with the Philippines
Patent Office, and acknowledged by the same. Upon the other hand, defendant has
admitted that he is engaged in the repacking of vegetable lard and that he has been
using thereon "for sometime" printed labels bearing the trade-mark "Nel's Big 3
Lard". What is more, defendant does not claim that the latter is registered.
Lastly, a comparison thereof with plaintiffs label readily shows such of a
resemblance in the general features of both as is likely on deceive the ordinary
purchaser, exercising ordinary are, and induce him to believe that the goods
bearing such labels are products of one and the same enterprise, particularly
plaintiff herein, she having been, evidently, in the business of repacking
vegetable lard before defendant herein.

Hence, there is no genuine issue about the fact that the use of the trade-mark
"Nel's Big 3" on vegetable lard repacked by the defendant constitutes an
infringement upon plaintiff's registered trade-mark "Big Five 5", which is
similarly used on repacked vegetable lard, and the lower court did not err in
granting, by summary judgment, the injunction prayed for by the plaintiff, in
dismissing defendant's counterclaim, and in refusing to reconsider said judgment.