The BIA held in Matter of Perez Ramirez, 25 I. & N. Dec. 203 (B.I.A. Mar. 17, 2010), that (1) where a criminal alien's sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime rather than punishment for a separate offense and (2) an alien's misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 USCA § 16(a).
The respondent, Antonio Perez Ramirez, is a native and citizen of Mexico and a lawful permanent resident of the U.S. On August 18, 2004, he was convicted pursuant to a nolo contendere plea in the Superior Court of California, County of Los Angeles, of the misdemeanor offense of inflicting corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code. The trial court did not impose a sentence for this offense but instead suspended imposition of a sentence and granted the respondent 36 months of “summary probation.” As a condition of this probation order, the trial court ordered the respondent to enroll in a 12-month batterer's counseling program. The respondent was also ordered not to annoy, harass, or molest anyone involved in the case and was served with a copy of a protective order. On July 24, 2007, the respondent stipulated in open court to a probation violation, and the trial court found that he had violated the terms of his probation. His probation was reinstated and continued on the same terms and conditions except that he was also ordered to serve 365 days in the Los Angeles County Jail for his offense. In a decision dated June 24, 2009, an immigration judge (IJ) found the respondent removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of a “crime of violence” for which the term of imprisonment is at least one year, which is an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. The respondent appealed to the BIA.
INA § 101(a)(43)(F) defines “aggravated felony” to include crimes of violence as defined in 18 USCA § 16(a) that resulted in a term of imprisonment of at least one year. 18 USCA § 16(a) in turn defines “crime of violence” to include either (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that is a felony that by its nature involves a substantial risk that physical force will be used against another in the course of its commission.
In an opinion written by Board Member Roger Pauley for the panel, which included Board Members Lauri S. Filppu and Patricia A. Cole, the Board rejected the respondent's arguments that he was not convicted of a crime of violence for which the term of imprisonment was at least one year because (1) the use, attempted use, or threatened use of physical force against the person of another, which is required by 18 USCA § 16(a), need not be shown for a conviction under Cal. Penal Code § 273.5(a) because, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another, thus precluding any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another and (2) under California law, the 365-day jail term imposed by the trial court on July 24, 2007, did not represent a sentence to a “term of imprisonment of at least one year” in connection with his underlying criminal conviction but instead was the result of his probation violation and constituted only a condition of his reinstated and modified order of probation.
The Board first held that under Supreme Court, circuit court, including the Ninth Circuit, the circuit in which this case arose, and Board precedent, the modification of the respondent's sentence following his probation violation, which resulted in a sentence of confinement for 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings rather than punishment for a separate offense. Thus, the respondent's 365-day term of imprisonment, imposed following modification of his probation, represented a one-year sentence for violating Cal. Penal Code § 273.5(a).
Preliminarily, the Board found that, while this language would appear to only prescribe the allowable punishment for a felony, when it is read in conjunction with Cal. Penal Code § 17, it is clear that the provision in § 273.5(a) allowing for imprisonment in a county jail for not more than one year is the maximum possible punishment for a misdemeanor since under § 17 a felony is a crime that is punishable by death or imprisonment in the state prison and every other crime or public offense is a misdemeanor except those offenses classified as infractions. Therefore, the Board concluded that, because the respondent was ordered to serve 365 days in county jail, under California law, his offense would be excluded from the definition of a felony. Nevertheless, the Board pointed out, the respondent's misdemeanor may be an “aggravated felony” since he was sentenced to a term of imprisonment for at least one year. The Board cited U.S. v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002), which held that a crime may be classified as an aggravated felony under INA § 101(a)(43)(F) without regard to whether the crime is labeled a felony or a misdemeanor under state law when the crime is a “crime of violence” and the sentence imposed by the state court is one year.
The Board then addressed the question of whether the respondent's conviction was for a “crime of violence.” The Board rejected the respondent's contention that, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another and thus precludes any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another because California state court decisions have found that the term “willfully” as employed in § 273.5(a) means a purpose or willingness on the part of the actor to commit the act that results in corporal injury and have defined the term “inflicts” as used in § 273.5(a) as meaning that the corporal injury must result from a direct application of force by the perpetrator upon the victim. The Board further noted that § 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Since a person cannot be convicted under § 273.5(a) without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim, the Board was satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 USCA § 16(a).
While § 7(1) provides that the term “willfully” does not require any intent to injure another, the Board concluded that the “volition” requirement implicit in the term “use” relates to the application of force against the victim and not to the resulting infliction of injury. Accordingly, the Board agreed with the IJ that the respondent's California conviction for inflicting corporal injury on a spouse qualifies categorically as a conviction for a “crime of violence” under 18 USCA § 16(a) and that, since his conviction resulted in the imposition of a term of imprisonment of one year following his violation of probation, he is removable as an alien convicted of a “crime of violence” aggravated-felony offense. Accordingly, the respondent's appeal was dismissed.


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G.R. No. 188526, November 11, 2013 - CENTURY CHINESE MEDICINE CO., MING SENG CHINESE DRUGSTORE, XIANG JIAN CHINESE DRUG STORE, TEK SAN CHINESE DRUG STORE, SIM SIM CHINESE DRUG STORE, BAN SHIONG TAY CHINESE DRUG STORE AND/OR WILCENDO TAN MENDEZ, SHUANG YING CHINESE DRUGSTORE, AND BACLARAN CHINESE DRUG STORE, Petitioners, v. PEOPLE OF THE PHILIPPINES AND LING NA LAU, Respondent.
CENTURY CHINESE MEDICINE CO., MING SENG CHINESE DRUGSTORE, XIANG JIAN CHINESE DRUG STORE, TEK SAN CHINESE DRUG STORE, SIM SIM CHINESE DRUG STORE, BAN SHIONG TAY CHINESE DRUG STORE AND/OR WILCENDO TAN MENDEZ, SHUANG YING CHINESE DRUGSTORE, AND BACLARAN CHINESE DRUG STORE, Petitioners, v. PEOPLE OF THE PHILIPPINES AND LING NA LAU, Respondent.
Before us is a petition for review on certiorari which seeks to reverse and set aside the Decision1 dated March 31, 2009 of the Court of Appeals in CA-G.R. CV No. 88952 and the Resolution2 dated July 2, 2009, which denied reconsideration thereof. The CA reversed the Order3 dated September 25, 2006 of the Regional Trial Court (RTC), Branch 143, Makati City, quashing Search Warrants Nos. 05-030, 05-033, 05-038, 05-022, 05-023, 05-025, 05-042 and 05-043, and the Order4 dated March 7, 2007 denying reconsideration thereof.
Respondent Ling Na Lau, doing business under the name and style Worldwide Pharmacy,5 is the sole distributor and registered trademark owner of TOP GEL T.G. & DEVICE OF A LEAF papaya whitening soap as shown by Certificate of Registration 4-2000-009881 issued to her by the Intellectual Property Office (IPO) for a period of ten years from August 24, 2003.6 On November 7, 2005, her representative, Ping Na Lau, (Ping) wrote a letter7 addressed to National Bureau of Investigation (NBI) Director Reynaldo Wycoco, through Atty. Jose Justo Yap and Agent Joseph G. Furing (Agent Furing), requesting assistance for an investigation on several drugstores which were selling counterfeit whitening papaya soaps bearing the general appearance of their products.
Agent Furing was assigned to the case and he executed an affidavit8 stating that: he conducted his own investigation, and on November 9 and 10, 2005, he, together with Junayd Esmael (Esmael), were able to buy whitening soaps bearing the trademark “TOP-GEL”, “T.G.” & “DEVICE OF A LEAF” with corresponding receipts from a list of drugstores which included herein petitioners Century Chinese Medicine Co., Min Seng Chinese Drugstore, Xiang Jiang Chinese Drug Store, Tek San Chinese Drug Store, Sim Sim Chinese Drug Store, Ban Shiong Tay Drugstore, Shuang Ying Chinese Drugstore, and Baclaran Chinese Drug Store; while conducting the investigation and test buys, he was able to confirm Ping’s complaint to be true as he personally saw commercial quantities of whitening soap bearing the said trademarks being displayed and offered for sale at the said drugstores; he and Esmael took the purchased items to the NBI, and Ping, as the authorized representative and expert of Worldwide Pharmacy in determining counterfeit and unauthorized reproductions of its products, personally examined the purchased samples, and issued a Certification9 dated November 18, 2005 wherein he confirmed that, indeed, the whitening soaps bearing the trademarks “TOP-GEL”, “T.G.” & “DEVICE OF A LEAF” from the subject drugstores were counterfeit.
Esmael also executed an affidavit10 corroborating Agent Furing’s statement. Ping’s affidavit11 stated that upon his personal examination of the whitening soaps purchased from petitioners bearing the subject trademark, he found that the whitening soaps were different from the genuine quality of their original whitening soaps with the trademarks “TOP-GEL”, “T.G.” & “DEVICE OF A LEAF” and certified that they were all counterfeit.
On November 21, 2005, Agent Furing applied for the issuance of search warrants before the Regional Trial Court (RTC), Branch 143, Makati City, against petitioners and other establishments for violations of Sections 168 and 155, both in relation to Section 170 of Republic Act (RA) No. 8293, otherwise known as the Intellectual Property Code of the Philippines. Section 168, in relation to Section 170, penalizes unfair competition; while Section 155, in relation to Section 170, punishes trademark infringement.
On November 23, 2005, after conducting searching questions upon Agent Furing and his witnesses, the RTC granted the applications and issued Search Warrants Nos. 05-030, 05-033, and 05-038 for unfair competition and Search Warrants Nos. 05-022, 05-023, 05-025, 05-042 and 05-043 for trademark infringement against petitioners.
On December 8, 2005, petitioners collectively filed their Motion to Quash13 the Search Warrants contending that their issuances violated the rule against forum shopping; that Benjamin Yu (Yu) is the sole owner and distributor of the product known as “TOP-GEL”; and there was a prejudicial question posed in Civil Case No. 05-54747 entitled Zenna Chemical Industry v. Ling Na Lau, et al., pending in Branch 93 of the RTC of Quezon City, which is a case filed by Yu against respondent for damages due to infringement of trademark/tradename, unfair competition with prayer for the immediate issuance of a temporary restraining order and/or preliminary prohibitory injunction.
On January 9, 2006, respondent filed her Comment/Opposition14 thereto arguing the non-existence of forum shopping; that Yu is not a party- respondent in these cases and the pendency of the civil case filed by him is immaterial and irrelevant; and that Yu cannot be considered the sole owner and distributor of “TOP GEL T.G. & DEVICE OF A LEAF.” The motion was then submitted for resolution in an Order dated January 30, 2006.
1. Respondents acknowledge the exclusive right of Complainant over the trademark TOP GEL T.G. & DEVICE OF A LEAF for use on papaya whitening soap as registered under Registration No. 4-2000-009881 issued on August 24, 2003.
2. Respondents acknowledge the appointment by Zenna Chemical Industry Co., Ltd. of Complainant as the exclusive Philippine distributor of its products under the tradename and trademark TOP GEL MCA & MCA DEVICE (A SQUARE DEVICE CONSISTING OF A STYLIZED REPRESENTATION OF A LETTER “M” ISSUED ” OVER THE LETTER “CA”) as registered under Registration No. 4-1996-109957 issued on November 17, 2000, as well as the assignment by Zenna Chemical Industry Co., Ltd. to Complainant of said mark for use on papaya whitening soap.
3. Respondents admit having used the tradename and trademark aforesaid but after having realized that Complainant is the legitimate assignee of TOP GEL MCA & MCA DEVICE and the registered owner of TOP GEL T.G. & DEVICE OF A LEAF, now undertake to voluntarily cease and desist from using the aforesaid tradename and trademark and further undertake not to manufacture, sell, distribute, and otherwise compete with Complainant, now and at anytime in the future, any papaya whitening soap using or bearing a mark or name identical or confusingly similar to, or constituting a colorable imitation of, the tradename and trademark TOP GEL MCA & MCA DEVICE and/or TOP GEL T.G. & DEVICE OF A LEAF as registered and described above.
4. Respondents further undertake to withdraw and/or dismiss their counterclaim and petition to cancel and/or revoke Registration No. 4-2000-009881 issued to Complainant. Respondents also further undertake to pull out within 45 days from approval of the Compromise Agreement all their products bearing a mark or name identical or confusingly similar to, or constituting a colorable imitation of, the tradename and trademark TOP GEL MCA & MCA DEVICE and/or TOP GEL T.G. & DEVICE OF A LEAF, from the market nationwide.
5. Respondents finally agree and undertake to pay Complainant liquidated damages in the amount of FIVE HUNDRED THOUSAND (Php500,000.00) PESOS for every breach or violation of any of the foregoing undertakings which complainant may enforce by securing a writ of execution from this Office, under this case.
6. Complainant, on the other hand, agrees to waive all her claim for damages against Respondents as alleged in her complaint filed in the Intellectual Property Office only.
7. The Parties hereby agree to submit this Compromise Agreement for Approval of this Office and pray for issuance of a decision on the basis thereof.
Finding the Compromise Agreement to have been duly executed and signed by the parties and/or their representatives/counsels and the terms and conditions thereof to be in conformity with the law, morals, good customs, public order and public policy, the same is hereby APPROVED. Accordingly, the above-entitled case is DISMISSED as all issues raised concerning herein parties have been rendered MOOT AND ACADEMIC.
WHEREFORE, finding that the issuance of the questioned search warrants were not supported by probable cause, the Motion to Quash is GRANTED. Search warrants nos. 05-030, 05-033, 05-038, 05-022, 05-023, 05-025, 05-042, 05-043 are ordered lifted and recalled.
The NBI Officers who effected the search warrants are hereby ordered to return the seized items to herein respondents within ten (10) days from receipt of this Order.
In quashing the search warrants, the RTC applied the Rules on Search and Seizure for Civil Action in Infringement of Intellectual Property Rights.20 It found the existence of a prejudicial question which was pending before Branch 93 of RTC Quezon City, docketed as Civil Case No. 05-54747, on the determination as to who between respondent and Yu is the rightful holder of the intellectual property right over the trademark TOP GEL T.G. & DEVICE OF A LEAF; and there was also a case for trademark infringement and/or unfair competition filed by respondent against Yu before the IPO which was pending at the time of the application for the search warrants. It is clear, therefore, that at the time of the filing of the application for the search warrants, there is yet no determination of the alleged right of respondent over the subject trademark/tradename. Also, the RTC found that petitioners relied heavily on Yu’s representation that he is the sole owner/distributor of the Top Gel whitening soap, as the latter even presented Registration No. 4-1996-109957 from the IPO for a term of 20 years from November 17, 2000 covering the same product. There too was the notarized certification from Zenna Chemical Industry of Taiwan, owner of Top Gel MCA, with the caveat that the sale, production or representation of any imitated products under its trademark and tradename shall be dealt with appropriate legal action.
The RTC further said that in the determination of probable cause, the court must necessarily resolve whether or not an offense exists to justify the issuance of a search warrant or the quashal of the one already issued. In this case, respondent failed to prove the existence of probable cause, which warranted the quashal of the questioned search warrants.
Respondent filed a motion for reconsideration, which the RTC denied in its Order22 dated March 7, 2007.
Respondent then filed her appeal with the CA. After respondent filed her appellant’s brief and petitioners their appellee’s brief, the case was submitted for decision.
In reversing the RTC’s quashal of the search warrants, the CA found that the search warrants were applied for and issued for violations of Sections 155 and 168, in relation to Section 170, of the Intellectual Property Code and that the applications for the search warrants were in anticipation of criminal actions which are to be instituted against petitioners; thus, Rule 126 of the Rules of Criminal Procedure was applicable. It also ruled that the basis for the applications for issuance of the search warrants on grounds of trademarks infringement and unfair competition was the trademark TOP GEL T.G. & DEVICE OF A LEAF; that respondent was the registered owner of the said trademark, which gave her the right to enforce and protect her intellectual property rights over it by seeking assistance from the NBI.
The CA did not agree with the RTC that there existed a prejudicial question, since Civil Case No. 05-54747 was already dismissed on June 10, 2005, i.e., long before the search warrants subject of this appeal were applied for; and that Yu’s motion for reconsideration was denied on September 15, 2005 with no appeal having been filed thereon as evidenced by the Certificate of Finality issued by the said court.
Petitioners’ motion for reconsideration was denied by the CA in a Resolution dated July 2, 2009.
Petitioners contend that the products seized from their respective stores cannot be the subject of the search warrants and seizure as those Top Gel products are not fruits of any crime, infringed product nor intended to be used in any crime; that they are legitimate distributors who are authorized to sell the same, since those genuine top gel products bore the original trademark/tradename of TOP GEL MCA, owned and distributed by Yu. Petitioners also claim that despite the RTC’s order to release the seized TOP GEL products, not one had been returned; that one or two samples from each petitioner’s’ drugstore would have sufficed in case there is a need to present them in a criminal prosecution, and that confiscation of thousands of these products was an overkill.
Petitioners also argue that the issue that the RTC erred in applying the rules on search and seizure in anticipation of a civil action was never raised in the RTC.
The issue for resolution is whether or not the CA erred in reversing the RTC’s quashal of the assailed search warrants.
Thus, we agree with the CA that A.M. No. 02-1-06-SC, which provides for the Rules on the Issuance of the Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights, is not applicable in this case as the search warrants were not applied based thereon, but in anticipation of criminal actions for violation of intellectual property rights under RA 8293. It was established that respondent had asked the NBI for assistance to conduct investigation and search warrant implementation for possible apprehension of several drugstore owners selling imitation or counterfeit TOP GEL T.G. & DEVICE OF A LEAF papaya whitening soap. Also, in his affidavit to support his application for the issuance of the search warrants, NBI Agent Furing stated that “the items to be seized will be used as relevant evidence in the criminal actions that are likely to be instituted.” Hence, Rule 126 of the Rules of Criminal Procedure applies.
SEC. 5. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with the affidavits submitted.
The RTC quashed the search warrants, saying that (1) there exists a prejudicial question pending before Branch 93 of the RTC of Quezon City, docketed as Civil Case No. 05-54747, i.e., the determination as to who between respondent and Yu is the rightful holder of the intellectual property right over the trademark TOP GEL T.G. & DEVICE OF A LEAF; and there was also a case for trademark infringement and/or unfair competition filed by respondent against Yu pending before the IPO, docketed as IPV Case No. 10-2005-00001; and (2) Yu’s representation that he is the sole distributor of the Top Gel whitening soap, as the latter even presented Registration No. 4-1996-109957 issued by the IPO to Zenna Chemical Industry as the registered owner of the trademark TOP GEL MCA & DEVICE MCA for a term of 20 years from November 17, 2000 covering the same product.
We do not agree. We affirm the CA’s reversal of the RTC Order quashing the search warrants.
x x x It bears stressing that the basis for the applications for issuances of the search warrants on grounds of trademark infringement and unfair competition is the trademark TOP GEL T.G. & DEVICE OF A LEAF. Private complainant-appellant was issued a Certificate of Registration No. 4-2000-009881 of said trademark on August 24, 2003 by the Intellectual Property Office, and is thus considered the lawful holder of the said trademark. Being the registrant and the holder of the same, private complainant-appellant had the authority to enforce and protect her intellectual property rights over it. This prompted her to request for assistance from the agents of the NBI, who thereafter conducted a series of investigation, test buys and inspection regarding the alleged trademark infringement by herein respondents-appellees. Subsequently, Ping Na Lau, private complainant-appellant’s representative, issued a certification with the finding that the examined goods were counterfeit. This prompted the NBI agents to apply for the issuances of search warrants against the respondents-appellees. Said applications for the search warrants were granted after by Judge Laguilles after examining under oath the applicant Agent Furing of the NBI and his witnesses Ping Na Lau and Junayd R. Ismael.
Notably, at the time the applications for the issuance of the search warrants were filed on November 21, 2005, as the CA correctly found, Civil Case No. Q-05-54747, which the RTC found to be where a prejudicial question was raised, was already dismissed on June 10, 2005,32 because of the pendency of a case involving the same issues and parties before the IPO. Yu’s motion for reconsideration was denied in an Order33 dated September 15, 2005. In fact, a Certificate of Finality34 was issued by the RTC on January 4, 2007.
To inform the public of the issuance of the writ of preliminary injunction, respondent’s counsel had the dispositive portion of the Order published in The Philippine Star newspaper on October 30, 2005.37 Thus, it was clearly stated that Yu, doing business under the name and style of MCA Manufacturing, his agents, representatives, dealers and distributors and all persons acting in his behalf, were to cease and desist from using the trademark “TOP GEL & DEVICE OF A LEAF” or any colorable imitation thereof on Papaya Whitening soaps they manufacture, sell and/or offer for sale. Petitioners, who admitted having derived their TOP GEL products from Yu, are, therefore, notified of such injunction and were enjoined from selling the same.
Notwithstanding, at the time of the application of the search warrants on November 21, 2005, and while the injunction was in effect, petitioners were still selling the alleged counterfeit products bearing the trademark TOP GEL T.G. & DEVICE OF A LEAF. There exists a probable cause for violation of respondent’s intellectual property rights, which entitles her as the registered owner of the trademark TOP GEL and DEVICE OF A LEAF to be protected by the issuance of the search warrants.
2. Respondents acknowledge the appointment by Zenna Chemical Industry Co., Ltd. of Complainant as the exclusive Philippine distributor of its products under the tradename and trademark TOP GEL MCA & MCA DEVICE (A SQUARE DEVICE CONSISTING OF A STYLIZED REPRESENTATION OF A LETTER “M” OVER THE LETTER “CA”) as registered under Registration No 4-1996-109957 issued on November 17, 2000, as well as the assignment by Zenna Chemical Industry Co., Ltd. to Complainant of said mark for use on papaya whitening soap.
Hence, it appears that there is no more controversy as to who is the rightful holder of the trademark TOP GEL T.G. & DEVICE OF A LEAF. Therefore, respondent, as owner of such registered trademark has the right to the issuance of the search warrants.
Anent petitioners’ claim that one or two samples of the Top Gel products from each of them, instead of confiscating thousands of the products, would have sufficed for the purpose of an anticipated criminal action, citing our ruling in Summerville General Merchandising Co. v. Court of Appeals,39 is not meritorious.
The factual milieu of the two cases are different. In Summerville, the object of the violation of Summerville’s intellectual property rights, as assignee of Royal playing cards and Royal brand playing cards case, was limited to the design of Summerville’s Royal plastic container case which encased and wrapped the Crown brand playing cards. In the application for the search warrant which the RTC subsequently issued, one of the items to be seized were the Crown brand playing cards using the copyright plastic and Joker of Royal brand. Thus, numerous boxes containing Crown playing cards were seized and upon the RTC’s instruction were turned over to Summerville, subject to the condition that the key to the said warehouse be turned over to the court sheriff. Respondents moved for the quashal of the search warrant and for the return of the seized properties. The RTC partially granted the motion by ordering the release of the seized Crown brand playing cards and the printing machines; thus, only the Royal plastic container cases of the playing cards were left in the custody of Summerville. The CA sustained the RTC order. On petition with us, we affirmed the CA. We found therein that the Crown brand playing cards are not the subject of the offense as they are genuine and the Crown trademark was registered to therein respondents’ names; that it was the design of the plastic container/case that is alleged to have been utilized by respondents to deceive the public into believing that the Crown brand playing cards are the same as those manufactured by Summerville. We then said that assuming that the Crown playing cards could be considered subject of the offense, a sample or two are more than enough to retain should there have been a need to examine them along with the plastic container/case; and that there was no need to hold the hundreds of articles seized. We said so in the context that since what was in dispute was the design of the Royal plastic cases/containers of playing cards and not the playing card per se, a small number of Crown brand playing cards would suffice to examine them with the Royal plastic cases/containers. And the return of the playing cards would better serve the purposes of justice and expediency.
However, in this case, the object of the violation of respondent’s intellectual property right is the alleged counterfeit TOP GEL T.G. & DEVICE OF A LEAF papaya whitening soap being sold by petitioners, so there is a need to confiscate all these articles to protect respondent’s right as the registered owner of such trademark.
Petitioners next contend that the CA’s ruling on the applicability of Rule 126 of the Rules of Court that the search warrants were issued in anticipation of a criminal action was only based on respondent’s claim which was only brought for the first time in her appellant’s brief.
In the assailed Decision, the Court of Appeals found that the Rule correctly applicable to the subject search warrants was Rule 126 of the Rules of Court. Petitioners fault the appellate court for ruling that the Regional Trial Court incorrectly applied the Rules on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights on the basis of an argument that private respondent brought up for the first time in her Appellant’s Brief.
A cursory perusal of the Appellant’s Brief shows that the following issues/errors were raised, that: (1) the Honorable Trial Court erred in holding that the “Rules on Search and Seizure for Infringement of Intellectual Property Rights” apply to the search warrants at bar; (2) x x x.
Appellant (herein respondent) contends that the rule (SC Adm. Memo 1-06, No. 02-1-06, Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights) does [not] apply to the search warrants in the [case] at bar, for the reason that the search warrants themselves reveal that the same were applied for and issued for violations of “Section 155 in relation to Section 170 of RA 8293” and violations of “Section 168 in relation to Section 170 of RA 8293,” and that a perusal of the records would show that there is no mention of a civil action or anticipation thereof, upon which the search warrants are applied for.
1 Penned by Associate Justice Isaias Dicdican, with Associate Justices Bienvenido L. Reyes (now a member of this Court) and Marlene Gonzales-Sison, concurring; rollo, pp. 46-62.
3 Per Judge Zenaida T. Galapate-Laguilles; rollo, pp. 66-71.
4 Records, Vol. III, pp. 732-736.
5 Records, Vol. II, p. 275.
6 Records, Vol. I, pp. 97-98.
9 Records, Vol. I, pp. 83-84.
13 Records, Vol. II, pp. 239-259.
16 Per Bureau of Legal Affairs Director Estrellita Beltran- Abelardo; id. at 629-632.
21 Records, Vol. III, pp. 639-644.
26Sony Music Entertainment (Phils.), Inc. v. Español, 493 Phil. 507, 517 (2005), citing People v. Aruta, G.R. No. 120915, April 3, 1998, 288 SCRA 626.
27 Id., citing Columbia Pictures, Inc. v. Court of Appeals, 329 Phil. 875, 918 (1996), citing 79 CJS, Search and Seizures, Section 74, 862.
28Microsoft Corporation v. Maxicorp, Inc., 481 Phil. 550, 566 (2004).
29 Id. at 566-567, citing People v. Sy Juco, 64 Phil. 667 (1937).
32 Records, Vol. III, pp. 670-671; per Judge Apolinario D. Bruselas, Jr.
33 Id. at 672; per pairing Judge Samuel H. Gaerlan.
34 Id. at 731; per Atty. Cecilia L. Cuevas-Torrijos, Clerk of Court of RTC, Branch 93, Quezon City.
35 Id. at 674-681; per Hearing Officer Adoracion R. Umipig, Bureau of Legal Affairs, concurred in by Director Estrellita Beltran-Abelardo.
38 Records, Vol. II, pp. 631-632.
39 G.R. No. 158767, June 26, 2007, 525 SCRA 602.
41 CA rollo, pp. 116-117.

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LAKE SHORE & M. S. RY. CO.
On April 19, 1893, and again on October 17, 1893, the defendant in error demanded of the ticket agent of the plaintiff in error, in the city of Adrian, Mich., a 1,000-mile ticket, pursuant to the provisions of the above section, in the names of himself and his wife, Emma Watts Smith, which demand was refused. The defendant in error then applied for a mandamus to the circuit court to compel the railway company to issue such ticket upon the payment of the amount of $20; and, after a hearing, the motion was granted. Upon certiorari, the supreme court of Michigan affirmed that order, and held that the statute applied only to the railway lines of the plaintiff in error operated within the state of Michigan.
The defense set up by the railway company was that, under the charter from the state to one of the predecessors of the company to whose rights it had succeeded, it had the right to charge three cents a mile for the transportation of all passengers, and that such charter constituted a contract between the state and the company, which the former had no right to impair by any legislative action, and that the statute compelling the company to sell 1000-mile tickets at the rate of two cents a mile was an impairment of the contract, and was therefore void, as in violation of the constitution of the United States. It also alleged that the act was in violation of the fourteenth amendment of the constitution of the United States, in that it deprived the company of its property and liberty of contract, without due process of law, and also deprived it of the equal protection of the laws. The act was also alleged to be in violation of the constitution of the state of Michigan, on several grounds.
The supreme court of the state decided that there was no contract in relation to the rates which the company might charge for the transportation of passengers, and that the statute violated no provision either of the federal or the state constitution, but was a valid enactment of the legislature; and therefore the court affirmed the order for mandamus, the ticket to be good upon and limited to the railway lines of the defendant railroad company within the state of Michigan. 72 N. W. 328. The company sued out a writ of error from this court.
George C. Greene, for plaintiff in error.
Fred. A. Maynard and H. C. Smith, for defendant in error.
The only subject of inquiry for us in this case is whether the act of the legislature of the state of Michigan violates any provision of the federal constitution. If is not within our province to review the decision of the supreme court upon the question whether the act violates the constitution of the state.
The two questions of a federal nature that are raised in the record are (1) whether the act violates the constitution of the United States by impairing the obligation of any contract between the state and the railroad company; and (2) if not, does it nevertheless violate the fourteenth amendment of the constitution by depriving the company of its property or liberty without due process of law, or by depriving it of the equal protection of the laws? If we should d cide that this act violates any provision of the fourteenth amendment, it would be unnecessary to examine the question whether there was any contract between the state and the company, as claimed by it. We will therefore first come to an investigation of the legislative authority with reference to that amendment.
If unhampered by contract, there is nodoubt of the power of the state to provide by legislation for maximum rates of charges for railroad companies, subject to the condition that they must be such as will admit of the carrier earning a compensation that, under all the circumstances, shall be just to it and to the public, and whether they are or not is a judicial question. If the rates are fixed at an insufficient amount within the meaning of that term as given by the courts, the law would be invalid, as amounting to the taking of the property of the company without due process of law. Railway Co. v. Wellman, 143 U. S. 339, 344, 12 Sup. Ct. 400; Reagan v. Trust Co., 154 U. S. 362, 399, 14 Sup. Ct. 1047; Railway Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. 484; Smyth v. Ames, 169 U. S. 466, 523, 18 Sup. Ct. 418.
The extent of the power of the state to legislate regarding the affairs of railroad companies has, within the past few years, been several times before this court. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4; Illinois Cent. R. Co. v. Illinois, 163 U. S. 142, 16 Sup. Ct. 1096; Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, and cases cited. These cases arose under the commerce clause of the federal constitution, the inquiry being whether the legislation in question violated that provision. In the cases in which the legislation was upheld, it was on the ground that the state was but exercising its proper authority under its general power to legislate regarding persons and things within its jurisdiction, sometimes described as its police power, and that in exercising that power in the particular cases it did not violate the commerce clause of the federal constitution by improperly regulating or interfering with interstate commerce. The extent of the right of the state to legislate was examined in these various cases, so far, at least, as it was affected by the commerce clause of the constitution of the United States.
In Illinois Cent. R. Co. v. Illinois, supra, the state statute imposed the duty upon the company of stopping its fast mail train at the station at Cairo, to do which the train had to leave the through route at a point three mnes from that station, and then return to the same point in order to resume its journey. This statute was held to be an unconstitutional interference with interstate commerce, and therefore void.
This power must, however, be exercised in subordination to the provisions of the federal constitution. If, in the assumed exercise of its police power, the legislature of a state directly and plainly violates a provision of the constitution of the United States, such legislation would be void.
The validity of this act is rested by the counsel for the defendant in error upon the proposition that the state legislature has the power of regulation over the corporations created by it, and, in cases of railroad corporations, the same power of regulation, and also full control over the subject of rates to be charged by them as carriers for the transportation of persons and property. Assuming that the state is not controlled by contract between itself and the railroad company, the question is, how far does the authority of the legislature extend in a case where it has the power of regulation, and also the right to amend, alter, or repeal the charter of a company, together with a general power to legislate upon the subject of rates and charges of all carriers? It has no right, even, under such circumstances, to take away or destroy the property or annul the contracts of a railroad company with third persons. Greenwood v. Freight Co., 105 U. S. 13, 17; Com. v. Essex Co., 13 Gray, 239; People v. O'Brien, 111 N. Y. 1, 52, 18 N. E. 692; City of Detroit v. Detroit & H. P. R. Co., 43 Mich. 140, 5 N. W. 275.
A railroad company, although a quasi public corporation, and although it operates a public highway (Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. 965; Lake Shore & M. S. Ry. v. Ohio, 173 U. S. 285, 301, 19 Sup. Ct. 465), has, nevertheless, rights which the legislature cannot take away without a violation of the federal constitution, as stated in Smyth v. Ames, 169 U. S. 466, 544, 18 Sup. Ct. 418. A corporation is a person within the protection of the fourteenth amendment. Railway Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207; Smyth v. Ames, 169 U. S. 522, 526, 18 Sup. Ct. 418. Although it is under governmental control, that control must be exercised with due regard to constitutional guaranties for the protection of its property.
The question is presented in this case whether the legislature of a state, having power to fix maximum rates and charges for the transportation of persons and property by railroad companies, with the limitations above stated, and having power to alter, amend, or repeal their charters, within certain limitations, has also the right, after having fixed a maximum rate for the transportation of passengers, to still further regulate their affairs, and to discriminate and make an exception in favor of certain persons, and give to them a right of transportation for a less sum than the gene al rate provided by law.
It is said that the power to create this exception is included in the greater power to fix rates generally; that, having the right to establish maximum rates, it therefore has power to lower those rates in certain cases and in favor of certain individuals, while maintaining them or permitting them to be maintained at a higher rate in all other cases. It is asserted also that this is only a proper and reasonable regulation.
It does not seem to us that this claim is well founded. We cannot regard this exceptional legislation as the exercise of a lesser right which is included in the greater one to fix by statute maximum rates for railroad companies. The latter is a power to make a general rule applicable in all cases, and without discrimination in favor of or against any individual. It is the power to declare a general law upon the subject of rates beyond which the company cannot go, but within which it is at liberty to conduct its work in such a manner as may seem to it best suited for its prosperity and success. This is a very different power from that exercised in the passage of this statute. The act is not a general law upon the subject of rates, establishing maximum rates, which the company can in no case violate. The legislature, having established such maximum as a general law, now assumes to interfere with the management of the company while conducting its affairs pursuant to and obeying the statute regulating rates and charges, and notwithstanding such rates it assumes to provide for a discrimination,—an exception in favor of those who may desire and are able to purchase tickets at what might be called wholesale rates; a discrimination which operates in favor of the wholesale buyer, leaving the others subject to the general rule. And it assumes to regulate the time in which the tickets purchased shall be valid, and to lengthen it to double the period the railroad company has ever before provided. It thus invades the general right of a company to conduct and manage its own affairs, and compels it to give the use of its property for less than the general rate to those who come within the provisions of the statute; and to that extent it would seem that the statute takes the property of the company without due process of law. We speak of the general right of the company to conduct and manage its own affairs; but, at the same time, it is to be understood that the company is subject to the unquestioned jurisdiction of the legislature in the exercise of its power to provide for the safety, the health, and the convenience of the public, and to prevent improper exactions or extortionate charges from being made by the company.
It is stated upon the part of the defendant in error that the act is a mere regulation of the public business, which the legislature has a right to regulate, and its apparent object is to promote the convenience of persons having occasion to travel on railroads, and to reduce for them the cost of transportation; that its benefit to the public who are compelled to patronize railroads is unquestioned; that it brings the reduction of rates to two cents per mile within the reach of all persons who may have occasion to make only infrequent trips; and that there is no reason why the legislature may not fix the period of time within which the holder of the ticket shall be compelled to use it. The reduction of rates in favor of those purchasing this kind of ticket is thus justified by the reasons stated.
The right to claim from the company transportation at reduced rates by purchasing a certain amount of tickets is classed as a convenience. As so defined, it would be more convenient if the right could be claimed without any compensation whatever. But such a right is not a convenience at all, within the meaning of the term as used in relation to the subject of furnishing conveniences to the public. And, also, the convenience which the legislature is to protect is not the convenience of a small portion only of the persons who m y travel on the road, while refusing such alleged convenience to all others; nor is the right to obtain tickets for less than the general and otherwise lawful rate to be properly described as a convenience. If that were true, the granting of the right to some portion of the public to ride free on all trains and at all times might be so described. What is covered by the word 'convenience,' it might be difficult to define for all cases; but we think it does not cover this case. An opportunity to purchase a 1,000-mile ticket for less than the standard rate, we think, is improperly described as a convenience.
The power of the legislature to enact general laws regarding a company and its affairs does not include the power to compel it to make an exception in favor of some particular class in the community, and to carry the members of that class at a less sum than it has the right to charge for those who are not fortunate enough to be members thereof. This is not reasonable regulation. We do not deny the right of the legislature to make all proper rules and regulations for the general conduct of the affairs of the company, relating to the running of trains, the keeping of ticket offices open, and providing for the proper accommodation of the public.
This act is not like one establishing certain hours in the day during which trains shall be run for a less charge than during the other hours. In such case, it is the establishing of maximum rates of fare for the whole public during those hours, and it is not a discrimination in favor of certain persons by which they can obtain lower rates by purchasing a certain number of tickets, by reason of which the company is compelled to carry them at the reduced rate, and thus, in substance, to part with its property at a less sum than it would be otherwise entitled to charge. The power to compel the company to carry persons under the circumstances as provided for in this act, for less than the usual rates, does not seem to be based upon any reason which has hitherto been regarded as sufficient to authorize an interference with the corporation, although a common carrier and a railroad.
The act also compels the company to carry not only those who choose to purchase these tickets, but their wives and children, and it makes the tickets good for two years from the time of the purchase. If the legislature can, under the guise of regulation, provide that these tickets shall be good for two years, why can it not provide that they shall be good for five or ten or even a longer term of years? It may be said that the regulation must provide for a reasonable term. But what is reasonable under these circumstances? Upon what basis is the reasonable character of the period to be judged? If two years would, and five years would not, be reasonable, why not? And if five years would be reasonable, why would not ten? If the power exist at all, what are the factors which make it unreasonable to say that the tickets shall be valid for five or for ten years? It may be said that circumstances can change within that time. That is true, but circumstances may change within two just as well as within five or ten years. There is no particular time in regard to which it may be said in advance, and as a legal conclusion, that circumstances will not change. And can the validity of the regulation be made to depend upon what may happen in the future, during the running of the time in which the legislature has decreed the company shall carry the purchaser of the ticket? Regulations for maximum rates for present transportation of persons or property bear no resemblance to those which assume to provide for the purchase of tickets in quantities at a lower than the general rate, and to provide that they shall be good for years to come. This is not fixing maximum rates, nor is it proper regulation. It is an illegal and unjustifiable interference with the rights of the company.
If this power exist, it must include the right of the legislature, afte establishing maximum freight rates, to also direct the company to charge less for carrying freight where the party offering it sends a certain amount, and to carry it at that rate for the next two or five or ten years. Is that an exercise of the power to establish maximum freight rates? Is it a valid exercise of the power to regulate the affairs of a corporation? The legislature would thus permit not only discrimination in favor of the larger freighter as against the smaller one, but it would compel it. If the general power exist, then the legislature can direct the company to charge smaller rates for clergymen or doctors, for lawyers or farmers or school teachers, for excursions, for church conventions, political conventions, or for all or any of the various bodies that might desire to ride at any particular time or to any particular place.
If the legislature can interfere by directing the sale of tickets at less than the generally established rate, it can compel the company to carry certain persons or classes free. If the maximum rates are too high in the judgment of the legislature, it may lower them, provided they do not make them unreasonably low, as that term is understood in the law; but it cannot enact a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper. What right has the legislature to take from the company the compensation it would otherwise receive for the use of its property in transporting an individual or classes of persons over its road, and compel it to transport them free or for a less sum than is provided for by the general law? Does not such an act, if enforced, take the property of the company without due process of law? We are convinced that the legislature cannot thus interfere with the conduct of the affairs of corporations.
But it may be said that, as the legislature would have the power to reduce the maximum charges for all to the same rate at which it provides for the purchase of the 1,000-mile ticket, the company cannot be harmed or its property taken without due process of law, when the legislature only reduces the rates in favor of a few, instead of in favor of all. It does not appear that the legislature would have any right to make such an alteration. To do so might involve a reduction of rates to a point insufficient for the earning of the amount of remuneration to which a company is legally entitled under the decisions of this court. In that case, reduction would be illegal. For the purpose of upholding this discriminatory legislation, we are not to assume that the exercise of the power of the legislature to make in this instance a reduction of rates as to all would be legal, and therefore a partial reduction must be also legal. Prima facie, the maximum rates as fixed by the legislature are reasonable. This, of course, applies to rates actually fixed by that body.
There is no presumption, however, that certain named rates which it is said the legislature might fix, but which it has not, would, in case it did so fix them, be reasonable and valid. That it has not so fixed them affords a presumption that they would be invalid, and that presumption would remain until the legislature actually enacted the reduction. At any rate, there is no foundation for a presumption of validity in case it did so enact, in order to base the argument that a partial reduction, by means of this discrimination, is therefore also valid. And this argument also loses sight of the distinction we made above between the two cases of a general establishment of maximum rates and the enactment of discriminatory, exceptional, and partial legislation upon the subject of the sale of tickets to individuals willing and able to purchase a quantity at any one time. The latter is not an exercise of the power to establish maximum rates.
True it is that the railroad company exercises a public franchise and that its occupation is of a publ c nature, and the public therefore has a certain interest in, and rights connected with, the property, as was held in Munn v. Illinois, 94 U. S. 125, and the other kindred cases. The legislature has the power to secure to the public the services of the corporation for reasonable compensation, so that the public shall be exempted from unreasonable exactions, and it has also the authority to pass such laws as shall tend to secure the safety, convenience, comfort, and health of its partrons and of the public with regard to the railroad. But in all this we find it neither necessary nor appropriate, in order that the legislature may exercise its full right over these corporations, to make such a regulation as this, which discriminates against it and in favor of certain individuals, without any reasonable basis therefor, and which is not the fixing of maximum rates or the exercise of any such power.
The legislature having fixed a maximum rate at what must be presumed, prima facie, to be also a reasonable rate, we think the company, then, has the right to insist that all persons shall be compelled to pay alike; that no discrimination against it in favor of certain classes of married men or families, excursionists, or others shall be made by the legislature. If otherwise, then the company is compelled at the caprice or whim of the legislature to make such exceptions as it may think proper, and to carry the excepted persons at less than the usual and legal rates; and thus to part in their favor with its property without that compensation to which it is entitled from all others, and therefore to part with its property without due process of law. The affairs of the company are in this way taken out of its own management, not by any general law applicable to all, but by a discrimination made by law to which the company is made subject. Whether an act of this nature shall be passed or not is not a matter of policy to be decided by the legislature. It is a matter of right of the company to carry on and manage its concerns, subject to the general law applicable to all, which the legislature may enact in the legal exercise of its power to legislate in regard to persons and things within its jurisdiction.
This case differs from that which has just been decided. Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465. In that case, the convenience of the public in the state was the basis of the decision, regard being also had to the convenience of the public outside of and beyond the state. It included all the public who desired to ride from the stations provided for in the act, and the convenience to the people in taking a train at these stations was held by this court to be so substantial as to justify the enactment in question.
But in this case it is not a question of convenience at all, within the proper meaning of that term. Aside from the rate at which the ticket may be purchased, the convenience of purchasing this kind of a ticket is so small that the right to enact the law cannot be founded upon it. It is no answer to the objection to this legislation to say that the company has voluntarily sold 1,000-mile tickets good for a year from the time of their sale. What the company may choose voluntarily to do furnishes no criterion for the measurement of the power of a legislature. Persons may voluntarily contract to do what no legislature would have the right to compel them to do. Nor does it furnish a standard by which to measure the reasonableness of the matter exacted by the legislature. The action of the company upon its own volition, purely as a matter of internal administration, and in regard to the details of its business which it has the right to change at any moment, furnishes no argument for the existence of a power in a legislature to pass a statute in relation to the same business imposing additional burdens upon the company.
To say that the legislature has poer to absolutely repeal the charter of the company, and thus to terminate its legal existence, does not answer the objection that this particular exercise of legislative power is neither necessary nor appropriate to carry into execution any valid power of the state over the conduct of the business of its creature. To terminate the charter, and thus end the legal life of the company, does not take away its property, but, on the contrary, leaves it all to the shareholders of the company after the payment of its debts.
In Attorney General v. Old Colony R. Co., 160 Mass. 62, 35 N. E. 252, the statute required every railroad corporation in the commonwealth to have on sale certain tickets which should be received for fare on all railroad lines in the commonwealth, etc., and the statute was held invalid. The precise question involved in this case was not there presented, and the court said it was not necessary or practicable to attempt to determine in that case just how far the legislature could go by way of regulating the business of railroad companies, or just where were the limits of its power.
The power to enact legislation of this character cannot be founded upon the mere fact that the thing affected is a corporation, even when the legislature has power to alter, amend, or repeal the charter thereof. The power to alter or amend does not extend to the taking of the property of the corporation either by confiscation or indirectly by other means. The authority to legislate in regard to rates comes from the power to prevent extortion or unreasonable charges or exactions by common carriers or others exercising a calling and using their property in a manner in which the public have an interest.
In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald, and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road, and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health, or proper convenience of the public, but an arbitrary enactment in favor of the persons spoken of, who, in the legislative judgment, should be carried at a less expense than the other members of the community. There is no reasonable ground upon which the legislation can be rested, unless the simple decision of the legislature should be held to constitute such reason. Whether the legislature might not in the fair exercise of its power of regulation provide that ordinary tickets purchased from the company should be good for a certain reasonable time is not a question which is now before us, and we need not express any opinion in regard to it.
In holding this legislation a violation of that part of the constitution of the United States which forbids the taking of property without due process of law, and requires the equal protection of the laws, we are not, as we have stated, thereby interfering with the power of the legislature over railroads as corporations or common carriers to so legislate as to fix maximum rates, to prevent extortion or undue charges, and to promote the safety, health, convenience, or proper protection of the public. We say this particular piece of legislation does not partake of the character of legislation fairly or reasonably necessary to attain any of those objects, and that it does violate the federal constitution, as above stated.
The judgment of the supreme court of the state of Michigan should be reversed, and the case remanded for further proceedings not inconsistent with the opinion of this court; and it is so ordered.

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