SECOND DIVISION

[G.R. No. 213400. August 4, 2021.]

ELIDAD KHO AND VIOLETA KHO, petitioners, vs.

SUMMERVILLE GENERAL MERCHANDISING & CO., INC.,
respondent.

DECISION

HERNANDO, J : p

Before this Court is a Petition for Review on Certiorari 1 under Rule 45

of the Rules of Court assailing the October 1, 2013 Decision 2 and June 30,
2014 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 117835,
which set aside and annulled the Regional Trial Court's (RTC) July 21, 2010 4
and November 18, 2010 5 Orders in Criminal Case No. 00-183261, directed
the RTC to reinstate the Information for Unfair Competition before it and
denied the petitioners' Motion for Reconsideration, respectively.
Factual Antecedents:
The material and relevant facts are as follows:
Petitioners Elidad Kho (Elidad) and Violeta Kho (Violeta) were charged
with Unfair Competition by respondent Summerville General Merchandising
& Co., Inc., (Summerville) before the City Prosecutor's Office of Manila. On
May 31, 2000, a Resolution 6 was issued by the City Prosecutor's Office of
Manila recommending the filing of an unfair competition case against
petitioners. Thus, an Information 7 for Unfair Competition was filed against
petitioners before the RTC Branch 24 docketed as Crim. Case No. 00-183261.
8

The charge as contained in the Information for Unfair Competition

provides, viz.:
That on or about January 10, 2000 and for some time prior and
subsequent thereto, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping one
another, then engaged in a business known as KEC Cosmetic
Laboratory, located at 2407 Topacio Street and 2412 Raymundo
Street, San Andres, this City, in an unfair competition, and for the
purpose of deceiving/defrauding the public in general and the
Summerville General Merchandising and Co. (Summerville) which is
engaged, among others, in the importation and distribution of facial
cream products with the trademark known as Chin Chun Su, herein
represented by Victor Chua, its General Manager, did then and there
willfully, unlawfully, knowingly and jointly sell/dispose and/or cause to
be sold/disposed to the public facial cream products using tools,
implements and equipment in its production, labeling and
distribution, which give and depict the general appearance of the
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 Chin Chun Su facial cream products and likely influence the
purchasers to believe that the same are those of the said
Summerville.
CONTRARY TO LAW. 9
Petitioners filed a Petition for Review 10 before the Department of
Justice (DOJ) assailing the May 31, 2000 Resolution of the City Prosecutor's
Office of Manila. The DOJ affirmed the May 31, 2000 Resolution in a
Resolution 11 dated August 17, 2000. However, upon motion for
reconsideration 12 of petitioners, the DOJ issued the June 18, 2001 Resolution
13 which recalled and set aside the August 17, 2000 Resolution but did not
rule on the propriety of the complaint. The June 18, 2001 Resolution merely
stated that the case would be further reviewed and the corresponding
resolution would be issued. Meanwhile, petitioners' arraignment 14 pushed
through on October 11, 2000 where they refused to enter a plea. Thus, pleas
of not guilty were entered for them. 15
On September 28, 2001, the DOJ issued a Resolution dismissing the
complaint filed against petitioners, which respondent Summerville assailed
through a Motion for Reconsideration. 16 On the basis of the September 28,
2001 Resolution, the prosecution filed with the RTC Branch 24, a Motion to
Withdraw Information. 17 The RTC Branch 24 issued an Order 18 dated
October 24, 2001 withdrawing the Information against petitioners. A Motion
for Reconsideration 19 was filed by respondent Summerville before the trial
court, while petitioners filed a supplemental motion 20 insisting that the case
be dismissed on the ground of double jeopardy. On August 21, 2002, the RTC
Branch 24 issued an Order 21 holding that in view of its earlier Order
withdrawing the Information, there is no necessity to order the dismissal of
the case. According to it, the refiling of the Information would constitute
double jeopardy. 22
On September 17, 2002, the DOJ issued a Resolution 23 granting the
Motion for Reconsideration filed by respondent Summerville and ordered the
Office of the City Prosecutor of Manila to file the appropriate Information for
Unfair Competition against petitioners. Respondent Summerville also filed a
Manifestation 24 before the trial court informing it of the September 17, 2002
Resolution of the DOJ, with prayer for the trial court to reinstate the case.
The trial court issued an Order 25 dated April 2, 2003 holding that the revival
of the case is barred by double jeopardy. 26
Respondent Summerville then filed a Petition for Certiorari 27 before
the CA docketed as CA-G.R. SP No. 77180 but it was denied due course and
dismissed by the appellate court in its Decision 28 dated May 26, 2004. Upon
elevation of the case before this Court, a Resolution 29 dated August 7, 2007
was issued in G.R. No. 163741 giving due course to the Petition of
respondent Summerville, annulling and setting aside the CA Decision dated
May 26, 2004 as well as the RTC Branch 24 Orders dated August 21, 2002
and April 2, 2003.
The Court ordered the remand of the unfair competition case to the
RTC Branch 24 to independently evaluate the merits thereof and to
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 determine whether or not probable cause exists to hold the petitioners for
trial. 30 It bears stressing that the Court in G.R. No. 163741 found that there
was failure on the part of the RTC Branch 24 to independently evaluate and
assess the case. The Court held that a remand of the case is proper to
determine if a prima facie case exists against petitioners. On the issue of
double jeopardy, the Court ruled that it does not bar the reinstatement of
the Information and that double jeopardy has not yet set in. 31
The case was remanded to RTC Branch 24 of Manila City but the
presiding judge therein inhibited from handling the case. Thus, the case was
raffled to RTC of Manila Branch 46 (RTC Branch 46). 32
The Ruling of the Regional Trial
Court, Branch 46, Manila:
On July 21, 2010, the RTC Branch 46 issued an Order 33 finding no
probable cause to hold petitioners for trial. The dispositive portion of the said
Order reads:
WHEREFORE, premises considered in compliance to the
resolution of the Supreme Court dated 07 August 2007, after
evaluating and assessing the merits of the case, this Court finds that
no probable cause exists to hold the accused for trial. Let the cash
bond posted by the accused be released.
Notify the accused and the private complainant of this Order.
xxx xxx xxx
SO ORDERED. 34

In arriving at the conclusion that no probable cause exists to hold the

accused for trial for unfair competition, the RTC Branch 46 found that the
accused never deceived the public into believing that the medical facial
cream that they sold which is contained in a pink oval-shaped container with
trademark of "Chin Chun Su," were the same as those being imported by
respondent Summerville; and petitioners acted in good faith without intent
to deceive the public.
A Motion for Reconsideration 35 was filed by respondent but it was
denied by the RTC in its Order 36 dated November 18, 2010.
Aggrieved, respondent Summerville filed a Petition for Certiorari 37
under Rule 65 of the Rules of Court against petitioners and the judge who
rendered the RTC's assailed Orders. The case was docketed as CA-G.R. SP
No. 117835. 38 Respondent filed its Comment. 39
Ruling of the Court of Appeals:
The appellate court in its assailed Decision 40 dated October 1, 2013
granted the Petition for Certiorari of respondent, the dispositive portion of
which reads:
WHEREFORE, the Petition is GRANTED. The Order dated July
21, 2010 and the Order dated November 18, 2010 of the Regional
Trial Court, Branch 46, Manila in Criminal Case No. 00-183261, are
SET ASIDE and ANNULLED .
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 Upon the finality of this Decision, the Regional Trial Court of
Manila, Branch 46, is directed to reinstate the Information for Unfair
Competition under Section 168.3 (a) of Republic Act No. 8293,
otherwise known as 'The Intellectual Property Code of the Philippines,'
and proceed de novo with Criminal Case No. 00-183261.
SO ORDERED. 41

The appellate court found that RTC Branch 46 committed grave abuse
of discretion amounting to lack or in excess of jurisdiction when it found no
probable cause to indict petitioners for unfair competition; petitioners are
charged with unfair competition and petitioners' product is confusingly
similar to that of respondent; the ordinary purchaser would not normally
inquire about the manufacturer of the product and therefore, petitioners' act
of labeling their product with the manufacturer's name would not exculpate
them from liability, especially as both products of petitioners and respondent
bore the name "Chin Chun Su," in oval shaped containers; 42 petitioners may
have the right to use the oval-shaped container for their medicated facial
cream but the mark "Chin Chun Su" imprinted thereon is beyond the
authority of petitioners' copyright and patent registration; and there is no
double jeopardy as it was even the Court in G.R. No. 163741 which directed
the Manila RTC to independently evaluate the case to determine whether or
not probable cause exists to hold the accused for trial. 43
Petitioners filed a Motion for Reconsideration 44 but it was denied in
the CA Resolution 45 dated 30 June 2014.
Hence, the Petition before Us.
Issues
Petitioners raised the following grounds for the allowance of their
Petition, viz.:
I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
RULED THAT THE TRIAL COURT ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION IN FINDING LACK OF PROBABLE CAUSE AGAINST
PETITIONERS.
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED AND ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION WHEN IT CORRECTED
ERRORS OF JUDGMENT IMPROPERLY RAISED IN A PETITION FOR
CERTIORARI.
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED AND
VIOLATED PETITIONERS' RIGHT AGAINST DOUBLE JEOPARDY WHEN IT
ORDERED THE CONDUCT OF TRIAL DE NOVO. 46
Simply put, the threshold issue before Us is whether or not the
appellate court erred when it found probable cause to indict petitioners for
Unfair Competition.
Our Ruling
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 The petition is bereft of merit.
We find no error on the part of the appellate court when it found grave
abuse of discretion on the part of the RTC Branch 46 in finding that no
probable cause exists to hold petitioners for trial in the unfair competition
case. The setting aside of the RTC's Orders dated July 21, 2010 47 and
November 18, 2010 48 is warranted under the circumstance.
As held, "the trial court judge's determination of probable cause is
based on his or her personal evaluation of the prosecutor's resolution and its
supporting evidence. The determination of probable cause by the trial court
judge is a judicial function x x x." 49
The term probable cause does not mean "actual or positive
cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Probable cause does not require an
inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged.
A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed by
the suspects. It need not be based on clear and convincing evidence
of guilt, not on evidence establishing guilt beyond reasonable doubt,
and definitely not on evidence establishing absolute certainty of guilt.
In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on
common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been
committed and that the accused is probably guilty thereof and should
be held for trial. It does not require an inquiry as to whether there is
sufficient evidence to secure a conviction. 50
It bears to stress that —
a judge must always proceed with caution in dismissing cases
due to lack of probable cause, considering the preliminary nature of
the evidence before it. It is only when he or she finds that the
evidence on hand absolutely fails to support a finding of probable
cause that he or she can dismiss the case. On the other hand, if a
judge finds probable cause, he or she must not hesitate to proceed
with x x x trial in order that justice may be served. 51
In the present case, We find that the acts complained of constituted
probable cause to charge them with Unfair Competition.
Section 168 (3a) of the Intellectual Property Code provides:
SECTION 168. Unfair Competition, Rights, Regulations and
Remedies. — x x x
xxx xxx xxx
168.3. In particular, and without in any way limiting the
scope of protection against unfair competition, the following shall be
deemed guilty of unfair competition:
(a) Any person, who is selling his goods and gives them the
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 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 devices or words thereon, or in
any other feature of their appearance, which would be likely to
influence purchasers to believe that the goods offered are those of a
manufacturer or dealer, other than the actual manufacturer or dealer,
or who otherwise clothes the goods with such appearance as shall
deceive the public and defraud another of his legitimate trade, or any
subsequent vendor of such goods or any agent of any vendor
engaged in selling such goods with a like purpose; x x x
The essential elements of an action for unfair competition are: (1)
confusing similarity in the general appearance of the goods, and (2) intent to
deceive the public and defraud a competitor. 52 The confusing similarity may
or may not result from similarity in the marks, but may result from other
external factors in the packaging or presentation of the goods. Likelihood of
confusion of goods or business is a relative concept, to be determined only
according to peculiar circumstances of each case. 53 The element of intent to
deceive and to defraud may be inferred from the similarity of the
appearance of the goods as offered for sale to the public. 54
Here, petitioners' product which is a medicated facial cream sold to the
public is contained in the same pink oval-shaped container which had the
mark "Chin Chun Su," as that of respondent. While petitioners indicated in
their product the manufacturer's name, the same does not change the fact
that it is confusingly similar to respondent's product in the eyes of the public.
As aptly found by the appellate court, an ordinary purchaser would not
normally inquire about the manufacturer of the product. 55 Petitioners'
product and that solely distributed by respondent are similar in the following
respects "1. both are medicated facial creams; 2. both are contained in pink,
oval-shaped containers; and 3. both contain the trademark "Chin Chun Su" x
x x. The similarities far outweigh the differences. The general appearance of
(petitioners') product is confusingly similar to (respondent)." 56 Verily, the
acts complained of against petitioners constituted the offense of Unfair
Competition and probable cause exists to hold them for trial, contrary to the
findings of RTC Branch 46.
Unfair competition is always a question of fact. 57 In line with this, We
find that with the existence of probable cause on hand, it would serve the
ends of justice if the parties would be able to present their respective claims
and defenses in a full-blown trial. For now, it is sufficient that probable cause
exists to hold petitioners for trial for the unfair competition case filed against
them. Thus, the appellate court did not err when it directed the trial court to
reinstate the Information and proceed with the criminal case before it.
The CA's directive to the RTC Branch 46 to reinstate the Information for
Unfair Competition against petitioners did not violate the latter's right
against double jeopardy.
The proscription against double jeopardy presupposes that an accused
has been previously charged with an offense, and the case against him is
terminated either by his acquittal or conviction, or dismissed in any other
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 manner without his consent. As a general rule, the following requisites must
be present for double jeopardy to attach: (1) a valid indictment, (2) before a
court of competent jurisdiction, (3) the arraignment of the accused, (4) a
valid plea entered by him, and (5) the acquittal or conviction of the accused,
or the dismissal or termination of the case against him without his express
consent. 58
In this case, petitioners failed to prove that the abovementioned
requisites have been complied with. In fact, the issue of whether or not
double jeopardy has set in has already been resolved by this Court in its
Resolution dated August 7, 2007 in G.R. No. 163741. 59 This Court in G.R.
No. 163741 60 made a clear pronouncement that reinstatement of the
Information against petitioners is not barred 61 and that double jeopardy has
not set in. 62
From the foregoing disquisition, We find that the CA did not err in
rendering its assailed Decision and Resolution.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The
October 1, 2013 Decision and June 30, 2014 Resolution of the Court of
Appeals in CA-G.R. SP No. 117835 are AFFIRMED.
SO ORDERED.
Perlas-Bernabe, Inting, Gaerlan and Rosario, * JJ., concur.

Footnotes

* Designated as additional Member per S.O. No. 2835 dated July 15, 2021.
1. Rollo , pp. 3-31.
2. Id. at 42-58; penned by Associate Justice Victoria Isabel A. Paredes and
concurred in by Associate Justices Japar B. Dimaampao and Elihu A. Ybañez.
3. Id. at 59-60.
4. Id. at 84-101.
5. Id. at 102-110.

6. CA rollo, pp. 61-64.

7. Rollo , p. 34.
8. Id. at 33-34.
9. Id. at 7, 34.
10. CA rollo, p. 4.

11. Id. at 77-83.

12. Id. at 4.
13. Id.
14. Rollo , p. 8.
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 15. Id.
16. CA rollo, pp. 84-92.

17. Rollo , p. 35.

18. Id. at 6-8, 33-35.
19. Id. at 36.
20. Id.
21. CA rollo, pp. 160-161.

22. Rollo , pp. 36-37.

23. CA rollo, pp. 145-153.
24. Id. at 167-168.
25. Id. at 185.

26. Rollo , pp. 35-36.

27. Rollo , p. 33.
28. Id. at 40.
29. Id. at 9.
30. Id. at 9, 40.

31. Id. at 39-40.

32. Id. at 43, 84, 89.
33. Id. at 84-101.
34. Id. at 101.
35. Id. at 102-103.

36. Id. at 102-110.

37. Id. at 61-68.
38. Id.
39. Id. at 111-128.

40. Id. at 42-58.

41. Id. at 57.
42. Id. at 49-51.
43. Id. at 54-57.
44. Id. at 72-82.

45. Id. at 59-60.

46. Id. at 11.
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 47. Id. at 84-101.
48. Id. at 102-110.
49. Maza v. Turla , 805 Phil. 756, 756 (2017).

50. Imingan v. The Office of the Honorable Ombudsman, G.R. No. 226420, March 4,
2020, citing Philippine Deposit Insurance Corp. v. Hon. Casimiro, 768 Phil.
429 (2015).
51. Mendoza v. People , 733 Phil. 603, 615 (2014).
52. Asia Pacific Resources International Holdings, Ltd. v. Paperone, Inc. , G.R. Nos.
213365-66, December 10, 2018.
53. Id.

54. Id.
55. Rollo , p. 49.
56. Id. at 49-50.
57. Asia Pacific Resources International Holdings, Ltd. v. Paperone, Inc. , supra.
58. Condrada v. People , 446 Phil. 635, 641 (2003).

59. Rollo , p. 33.

60. Id.
61. Id. at 39.
62. Id. at 40.

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