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[US v. GOW CHIONG](https://lawyerly.ph/juris/view/c9a5?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 7175, Sep 05, 1912 ]

US v. GOW CHIONG +

DECISION

23 Phil. 138

[ G. R. No. 7175, September 05, 1912 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GOW CHIONG, DEFENDANT AND APPELLANT.

D E C I S I O N

JOHNSON, J.:

From the record it appears that on the 14th day of February, 1911, the prosecuting attorney of the city of Manila presented the following complaint against the defendant, charging him with the crime of unfair competition: 

"That at various times between the first day of January, 1910, and the 31st  day of December, 1910, at  the city of Manila, Philippine  Islands,  the said  defendant did,  then and there, willfully, unlawfully, and deceitfuHy, in the sale of sherry wine,  give to said sherry wine the general appearance of the sherry wine manufactured by Diez Hermanos of Jerez, Spain, and dealt in by Messrs.  Ed. A. Keller & Co. Ltd. of the city of Manila, in bottles in which said sherry wine  was contained and  the devices and  words thereon, and in other features of their appearance, which would be likely to influence purchasers to believe that the said sherry wine so offered for sale and so sold by said defendant was that manufactured  by said  Diez Hermanos  and dealt  in by said Ed.  A.  Keller  & Co. Ltd.,  and clothed  the said sherry wine so sold by said defendant with such appearance for the purpose of deceiving the public and of  defrauding the said Ed. A,  Keller &  Co. Ltd. of its legitimate trade. All contrary to the statutes in such cases  made  and provided."

Upon this complaint the defendant  was arrested and duly arraigned, and pleaded "not guilty."

After hearing the evidence adduced during the trial of the cause, the Honorable A. S.  Crossfield, judge, made the following findings of fact from such evidence: 

"That the defendant purchased a distillery  the first of the year 1910, but discontinued the distillery, and purchased wine and bottles sold upon the  market; that the sherry obtained by him was bottled in the ordinary bottle known as a quart bottle, and the label placed upon the bottles in the early time of his bottling the sherry was very similar to the labels used and designated in the trade-mark of Ed. A. Keller & Co.; that the defendant was called by the prosecuting attorney, and answering the call came to the office of the prosecuting attorney,  and was there advised that his putting up  sherry in the shape  he did was  unfair competition with the trade-mark of Ed. A. Keller & Co.; that he was warned by the  prosecuting attorney to desist, but that immediately afterwards he  commenced  putting up some sherry  and  using bottles with  labels  upon them much more closely resembling the trade-mark of Ed.  A. Keller & Co. than before, particularly in the kind of  silk tassel upon the neck of the bottle; that while this silk tassel was not  a part of the trade-mark of Ed. A. Keller & Co., it had been used by them for a great  many years in connection with  the trade-mark, and anyone, without  very close examination, would have been deceived by the similarity in appearance of the bottles  of sherry put up by the defendant and sold by Ed. A. Keller & Co. with  trade-mark label upon  it."

Upon  the foregoing  findings  of fact Judge Crossfield found the defendant  guilty  of the crime charged in said complaint and sentenced him to pay a fine of one thousand pesos, and in  case  of insolvency to  suffer subsidiary  imprisonment until said fine was paid, and to pay the costs.

From  that sentence the defendant appealed, and  made the following  assignments of  error: 

"I.  The trial court erred in failing to dismiss the complaint for duplicity. 

"II. The trial court erred in convicting the  accused of the charges of the complaint,  based upon section 7 of Act No. 666t without specifically  finding  (1) that  it appeared from the evidence beyond a reasonable doubt that there was an  'actual  intent'  on the part of the accused 'to  deceive the public, and to defraud' Ed. A. Keller &  Co. of  their legitimate trade. 

"III.  The court erred in finding that  anyone,  without very close  examination,  would have been deceived  by the similarity in appearance of the bottles of sherry  put up by  the  defendant  and that sold  by Ed.  A.  Keller & Co. vr ith its trade-mark label upon it. 

"IV. The trial court erred in finding as a fact that the accused used labels similar to those of Ed. A. Keller & Co., in bottling o£ sherry. 

"V. The court a quo erred in sentencing accused  to subsidiary  imprisonment in default of payment  of the  one thousand pesos fine imposed in the  sentence of the  court."

With  reference to the first assignment  of error,  to  wit, that the complaint was  objectionable upon the ground of duplicity, it may be said (1) that so far as  the record shows no objection whatever was made to the sufficiency of the complaint or to said duplicity in the court below.  We have in a number of cases decided that objections as to the sufficiency of a complaint would not be  considered when raised for the  first time on appeal.   (U. S. vs. Mabanag,  1  Phil. Rep.,  441;  U.S. vs. Cajayon,  2 Phil. Rep., 570; U. S. vs. Mack, 4 Phil. Rep.,  291; U. S. vs. Sarabia,  4 Phil. Rep., 566; Mortiga  vs.  Serra  et al. 5 Phil. Rep., 34; (See  also 204 U. S., 470, and 11 Phil. Rep., 762); U. S. vs. Paraiso, 5 Phil. Rep., 149; (See also case of Paraiso, 207 U. S., 368, and 11  Phil.  Rep., 799) ;  U.  S.  vs.  Aldos, 6 Phil. Rep., 381; U. S.  vs. Kusebio, 8 Phil.  Rep., 574;  U.  S. vs.  Flores, 9 Phil.  Rep., 47,  48; U. S. vs. Kosel, 10  Phil. Rep.,  409; U. S. vs. Lampano, 13 Phil. Rep., 409; U. S. vs. Palacio, 16 Phil. Rep.,  660.)

Inasmuch therefore as no objection was made to the complaint in the court below, we find no reason for modifying the sentence of the lower court based upon the first  assignment of error above noted.  Moreover, even granting, without admitting, that the complaint does state more than one cause of action, from an examination of the proof and the sentence of the lower court it will appear that it was the intention of the lower  court  only  to  find the  defendant guilty of one crime, to wit, unfair competition.

With reference to the second assignment of error above noted, to wit, that the lower court committed an error in finding the defendant guilty of the crime charged in the complaint without  finding as a fact beyond a reasonable doubt that there was  an "actual intent on the part of the accused to deceive the public and to defraud Ed. A. Keller & Co. of their legitimate trade," it may  be said that the lower court found the defendant guilty of the crime charged in the complaint, and that the complaint charges that the defendant did willfully,  unlawfully,  and  deceitfully, in the sale  of sherry wine  give to the same the general appearance  of sherry wine manufactured by Diez Hermanos and sold by Ed. A. Keller & Co., for the purpose of deceiving the public and of defrauding  the said Ed. A. Keller & Co.  of  its legitimate trade.  Reading the positive part of the decision of the lower court  together with  the facts alleged in the complaint,  it clearly appears that the  lower court  found that the defendant did with actual  intent attempt to  deceive  the public and to defraud  Ed. A. Keller & Co. of their legitimate trade.  This actual  intent to  defraud further appears from the fact that the attention  of the defendant was called to the fact that he was  unlawfully infringing upon  the rights of  the trade-mark of Diez Hermanos, by the prosecuting attorney  of the city of Manila, and that he thereafter immediately made some alteration in the labels theretofore used  by him, and  used  another  more similar to that used by Diez Hermanos  than  the first one.  We are of the opinion that  from a careful reading of the record it will clearly appear that the defendant did, with actual intent, try to deceive the public and to defraud  Ed.  A.  Keller & Co. of their legitimate trade.  It is  believed that the various exhibits  (A,  B, C,  D, E, and  F)  presented by the prosecuting attorney, cannot be examined  without producing the conviction  that the defendant  did actually attempt to defraud Ed. A.  Keller & Co. of their  legitimate trade in the sale of sherry wine for which they held a  trademark.  From an examination of the reasons given by the attorney for the appellant in support of  the second assignment of error, and the argument of  the Attorney-General in answer thereto, and in view of what this court has said in the cases of Jonas Brook Brothers vs. Froelich & Kuttner  (8 Phil. Rep., 580); U. S. vs. Manuel (7 Phil.  Rep., 221); Nelle  vs. Baer, Senior &  Co.  (5  Phil. Rep., 608), we are of the opinion  that the error complained of does not exist.  In the case of Jonas Brook Brothers vs. Froelich & Kuttner, supra, it was held that: 

"Any one who sells goods packed or labeled or otherwise prepared in  such a manner as to induce intending purchasers to believe that the goods are of a make  or origin other than  the true  one, or who clothes  the goods with a certain appearance for the purpose of deceiving the public, is deemed guilty of unfair competition as defined by section 7 of Act No. 666.   The intention to deceive may be inferred from the similarity of the goods as packed and  offered for sale,  and an  action will lie to  restrain  such unfair competition,  and  for damages."

In the present  case it not only appears that the bottles used by  the defendant for containing his wine were very similar in shape to the bottles used by Diez Hermanos, but the labels and everything  attached to the outside of the bottle as appears from the exhibits presented shows clearly that the defendant intended to give the public to understand that the sherry wine which he was selling was that of Diez Hermanos.  Not only did the bottles and  the labels used by the defendant appear to be of the same sherry wine as that sold by Ed. A. Keller & Co. Ltd., but the boxes in which the bottles were packed, as appears from the evidence, were also similar to the boxes used by Ed. A. Keller & Co. in importing the sherry wine which they sold.  Upon the whole record we find no reason  for modifying the sentence of the lower court based upon this second assignment of error.

With reference to the third assignment of error, we are of opinion that what was said in relation to the deceit under the second assignment of error, sufficiently answers this third assignment of error also.

With reference to the fourth assignment of error, we think that what was said in answer to the second assignment of error answers this one also.

In the fifth assignment of error  the appellant claims or contends that the lower court committed an error in imposing upon the defendant subsidiary imprisonment.  From a reading of the sentence of the lower court it  will appear that the lower court imposed upon the defendant subsidiary imprisonment at the rate of two and one half pesos per day until the fine of one thousand pesos should be. fully paid. The law does not permit subsidiary imprisonment to the extent imposed by the lower court.  Act No. 1732  of the Philippine  Commission  provides  for subsidiary imprisonment for criminal offenses made punishable by any Act or Acts of the Philippine Commission.

Paragraph (b) of section 1 of said Act No. 1732 provides: 

"In case the sentence of the court imposes both fine and imprisonment,  the  subsidiary imprisonment shall not exceed  one-third  of  the term of  imprisonment imposed by such  sentence,  and  in no case  shall such subsidiary imprisonment  exceed one year."

It will be noted that thiswparagraph does not apply to the present case, for the reason that in the present  case a fine only was imposed.

Paragraph (c) of section 1 of said Act provides that: 

"In case the sentence of the court merely imposes a fine, the subsidiary imprisonment shall not exceed six months."

In the present case a fine only was imposed.  Therefore the subsidiary imprisonment shall not  exceed six months. According to the decision  of the lower court, to wit, that the  defendant  should  suffer  subsidiary  imprisonment until the full amount of the fine was paid, it will be noted that in order to pay the sum of one thousand pesos at P2.50 per day,  it would require four hundred  days, or a period of more  than one  year, whereas the law in cases like the present  only permits subsidiary  imprisonment to the extent of six months. Therefore that part of the sentence of the lower.court imposing subsidiary imprisonment at the rate of P2.50 per day until the fine is paid, is hereby reversed.

Upon a full consideration of all of the facts adduced during the trial of the cause, and the law applicable thereto, we are of the opinion that the sentence of the lower court should be modified, and  it is hereby ordered that the defendant and appellant be sentenced to pay a fine of one thousand  pesos,  and in  case of insolvency to  suffer subsidiary imprisonment at the rate of P2.50 per day,  which subsidiary imprisonment shall in no case exceed a period of six months, and  to pay the costs.

Arellano, C.  J., Mapa, Carson, and Trent, JJ., concur.


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