G.R. No. 169440. November 23, 2011.

GEMMA ONG a.k.a. MARIA TERESA GEMMA CATA-

CUTAN, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.

Criminal Law; Appeals; Although submission of issues of fact

in an appeal by certiorari taken to the Court is ordinarily
proscribed, the Court nonetheless retains the option in the exercise
of its sound discretion, taking into account the attendant
circumstances, either to decide the case or refer it to the proper
court for determination.—As this case reached this Court via Rule
45 of the Rules of Court, the basic rule is that factual questions
are beyond the province of this Court, because only questions of
law may be raised in a petition for review. However, in
exceptional cases, this Court has taken cognizance of questions of
fact in order to resolve legal issues, such as when there was
palpable error or a grave misapprehension of facts by the lower
court. In Armed Forces of the Philippines Mutual Benefit
Association, Inc. v. Court of Appeals, 311 SCRA 143 (1999), we
said that although submission of issues of fact in an appeal by
certiorari taken to this Court is ordinarily proscribed, this Court
nonetheless retains the option in the exercise of its sound
discretion, taking into account the attendant circumstances,
either to decide the case or refer it to the proper court for
determination.
Same; Intellectual Property Code of the Philippines;
Trademarks; Trademark Infringement; Words and Phrases;
“Mark”; A “mark” is any visible sign capable of distinguishing the
goods (trademarks) or service (service mark) of an enterprise and
shall include a stamped or marked container of goods.—A “mark”
is any visible sign capable of distinguishing the goods (trademark)

_______________

* FIRST DIVISION.

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 Ong vs. People

or services (service mark) of an enterprise and shall include a

stamped or marked container of goods.
Same; Same; Same; Same; Once registered, not only the
mark’s validity but also the registrant’s ownership of the mark is
prima facie presumed.—A mark is valid if it is distinctive and not
barred from registration. Once registered, not only the mark’s
validity, but also the registrant’s ownership of the mark is prima
facie presumed.
Same; Same; Same; Same; Elements to Establish Trademark
Infringement.—In McDonald’s Corporation and McGeorge Food
Industries, Inc. v. L.C. Big Mak Burger, Inc., 437 SCRA 10 (2004),
this Court held: To establish trademark infringement, the
following elements must be shown: (1) the validity of plaintiff’s
mark; (2) the plaintiff’s ownership of the mark; and (3) the use of
the mark or its colorable imitation by the alleged infringer results
in “likelihood of confusion.” Of these, it is the element of
likelihood of confusion that is the gravamen of trademark
infringement.
Same; Evidence; Affidavits; Between an affidavit executed
outside the court and a testimony given in open court, the latter
almost always prevails.—This Court has time and again held that
between an affidavit executed outside the court, and a testimony
given in open court, the latter almost always prevails.
Discrepancies between a sworn statement and testimony in court
do not outrightly justify the acquittal of an accused. Such
discrepancies do not necessarily discredit the witness since ex
parte affidavits are often incomplete. They do not purport to
contain a complete compendium of the details of the event
narrated by the affiant. Thus, our rulings generally consider
sworn statements taken out of court to be inferior to in court
testimony. x x x.
Same; Same; Denials; The defense of denial is unavailing
when placed astride the undisputed fact that there was positive
identification of the accused.—Positive identification of a culprit is
of great weight in determining whether an accused is guilty or
not. Gemma, in claiming the defense of mistaken identity, is in
reality denying her involvement in the crime. This Court has held
that the defense of denial is insipid and weak as it is easy to
fabricate and difficult to prove; thus, it cannot take precedence
over the positive testimony of the offended party. The defense of
denial is unavailing when placed astride the undisputed
fact that there was positive identification of the accused.

PETITION for review on certiorari of a decision of the

Court of Appeals.
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106 SUPREME COURT REPORTS ANNOTATED

Ong vs. People

   The facts are stated in the opinion of the Court.

  Kapunan, Tamano, Villadolid & Associates for
petitioner.
  The Solicitor General for respondent.

LEONARDO-DE CASTRO, J.:

Before Us is a petition for review on certiorari, filed
under Rule 45 of the Rules of Court, to set aside and
reverse the June 16, 2005 Decision1 of the Court of
Appeals in CA-G.R. CR No. 28308, which affirmed the
September 23, 2003 Decision2 of the Regional Trial Court
(RTC) of Manila, Branch 24 in Criminal Case No. 00-
184454.
On July 28, 2000, petitioner Gemma Ong a.k.a. Maria
Teresa Gemma Catacutan (Gemma) was charged before the
RTC for Infringement under Section 155 in relation to
Section 170 of Republic Act No. 8293 or the Intellectual
Property Code. The accusatory portion of the Information
reads:

“That sometime in September 25, 1998 and prior thereto at

Sta. Cruz, Manila and within the jurisdiction of this Honorable
Court, the above-named accused did then and there, knowingly,
maliciously, unlawfully and feloniously engage in the distribution,
sale, [and] offering for sale of counterfeit Marlboro cigarettes
which had caused confusion, deceiving the public that such
cigarettes [were] Marlboro cigarettes and those of the Telengtan
Brothers and Sons, Inc., doing business under the style of La
Suerte Cigar and Cigarettes Factory, the exclusive manufacturer
of Marlboro Cigarette in the Philippines and that of Philip Morris
Products, Inc. (PMP7) the registered owner and proprietor of the
MARLBORO trademark together with the devices, including the
famous-Root Device, to their damage and prejudice, without the
accused seeking their permit or authority to manufacture and
distribute the same.”3

_______________
1 Rollo, pp. 19-36; penned by Associate Justice Martin S. Villarama, Jr.
(now Associate Justice of this Court) with Associate Justices Lucas P.
Bersamin (now Associate Justice of this Court) and Lucenito N. Tagle,
concurring.
2 Records, pp. 325-331.
3 Id., at p. 1.
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Ong vs. People

On August 1, 2000, Judge Rebecca G. Salvador of RTC

Manila, Branch 1, issued a warrant of arrest against
Gemma, but lifted4 and set aside5 the same after Gemma
voluntarily surrendered on August 4, 2000, and filed a cash
bond for P12,000.00.
Gemma pleaded not guilty to the charge upon
arraignment on October 17, 2000.6 After the pre-trial
conference on February 13, 2001,7 trial on the merits
ensued.
The prosecution called to the witness stand the
following: Roger Sherman Slagle, the Director of
Operations of Philip Morris Malaysia, and Philip Morris
Philippines, Inc.’s (PMPI) product/brand security expert, to
testify that according to his examination, the products they
seized at the subject premises were counterfeit cigarettes;8
as well as Jesse Lara, who, as then Senior Investigator III
at the Intellectual Property Rights (IPR) Unit of the
Economic Intelligence and Investigation Bureau (EIIB),
Department of Finance, led the investigating team, to
testify on the events that led to the arrest of Gemma.9 The
prosecution also presented the billing accountant of
Quasha Ancheta Peña & Nolasco Law Office (Quasha Law
Office), Juliet Flores, to show that PMPI, being one of
Quasha Law Office’s clients, paid the amount of $4,069.12
for legal services rendered.10 The last witness for the
prosecution was Atty. Alonzo Q. Ancheta, a senior law
partner at Quasha Law Office, who testified that as the
duly appointed Attorney-in-Fact of PMPI, he was in charge
of the EIIB search operation in the subject premises. Atty.
Ancheta said that while he was not personally present
during the implementation of the search warrant, he sent
Atty. Leonardo Salvador, who constantly reported the
developments to him.11

_______________
4  Id., at p. 30.
5  Id., at pp. 28-30.
6  Id., at p. 38.
7  Id., at pp. 51-53.
8  TSN, November 14, 2001, pp. 3-9.
9  TSN, January 22, 2002, pp. 6-25.
10 TSN, October 10, 2001, pp. 3-13.
 11 TSN, April 12, 2002, pp. 3-20.

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108 SUPREME COURT REPORTS ANNOTATED

Ong vs. People

The facts, as succinctly summarized by the Court of

Appeals, are as follows:

“On September 10, 1998, Jesse S. Lara, then Senior

Investigator III at the Intellectual Property Rights (IPR) Unit of
the Economic Intelligence and Investigation Bureau (EIIB),
Department of Finance, received reliable information that
counterfeit “Marlboro” cigarettes were being distributed and sold
by two (2) Chinese nationals, Johnny Sia and Jessie Concepcion,
in the areas of Tondo, Binondo, Sta. Cruz and Quiapo, Manila. A
mission team formed by EIIB, including Lara, conducted
surveillance operation to verify the report. EIIB agents Leonardo
Villanueva and Jigo Madrigal did a “test-buy” on the different
sari-sari stores of Manila located in Quiapo, Tondo, Sta. Cruz and
Blumentritt areas and took samples of “Marlboro” cigarettes sold
therein. During the surveillance, the container van delivering the
“Marlboro” packed in black plastic bags was seen parked at 1677
Bulacan corner Hizon Streets, Sta. Cruz, Manila [(the subject
premises)]. Upon inquiry from the Barangay Chairman, they also
learned that the place is owned by a certain Mr. Jackson Ong.
The EIIB team coordinated with officers of Philip Morris, Inc.,
owner of the trademark Marlboro Label in the Philippines duly
registered with the Philippine Patents Office and subsequently
with the Intellectual Property Office (IPO) since 1956. Initial
examination made by Philip Morris, Inc. on those random sample
purchases revealed that the cigarettes were indeed fake products
unauthorized by the company. With official indorsement by the
EIIB, Senior Investigator Lara filed an application for search
warrant before the Regional Trial Court of Dasmariñas, Cavite,
Branch 90.
On September 24, 1998, Executive Judge Dolores L. Español
issued a search warrant after finding probable cause to believe
that Mr. Jackson Ong has in his possession/control in the
premises located at 1675-1677 Bulacan St. cor. M. Hizon St., Sta.
Cruz, Manila, the following properties:
“Substantial number of fake locally made and imported fake
cigarettes bearing the Marlboro brand, together with the
corresponding labels, cartons, boxes and other packaging as
well as receipts, invoices and other documents relative to
the purchase, sale, and distribution of the aforesaid fake
Marlboro cigarettes.”
 On September 25, 1998, the EIIB team led by Senior
Investigator Lara implemented the search warrant, together with
SPO2 Rommel P. Sese of the Western Police District (WPD) as
representative of the Philippine National Police (PNP), Barangay
Chairman Ernesto Traje, Sr., Barangay Kagawad

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Vivian V. Rallonza and Atty. Leonardo P. Salvador who was sent

by [Quasha Peña & Nolasco Law Office,] the law firm engaged by
Philip Morris, Inc. They proceeded to the subject premises but
Jackson Ong, the alleged owner, was not there. It was accused,
who is supposedly either the spouse or common-law wife of
Jackson Ong, who entertained them. At first, accused refused to
allow them entry into the premises but eventually the team was
able to search the premises and found Marlboro cigarettes stocked
in several boxes containing fifty (50) reams inside each box which
were packed in black plastic sacks like in “balikbayan boxes.” The
“Inventory” and “Certification In the Conduct of Search” were
duly accomplished and signed by the members of the EIIB and the
other representatives present during the actual search (SPO2
Sese, Jess Lara, Traje, Sr., Henry Mariano, Isidro Burgos and
Atty. Salvador). Accused signed her name in the said documents
as “Gemma Ong,” as the Owner/Representative, while a certain
employee, Girlie Cantillo, also signed as witness.
On September 28, 1998, a Return of Search Warrant was
submitted by the EIIB to the issuing court stating that the
articles seized pursuant to the warrant were stored in the
premises of the EIIB and requesting that EIIB be granted
temporary custody of the goods. Acting on the Urgent Motion To
Transfer Custody of Confiscated Articles filed by Philip Morris
Products, Inc. (PMPI) of Virginia, U.S.A., Executive Judge
Dolores L. Español ordered the custody of the seized goods
transferred from EIIB to PMPI c/o Quasha Ancheta Peña and
Nolasco Law Office, the Attorney-in-Fact of PMPI. Judge Español
subsequently also issued an order dated October 15, 1998
authorizing PMPI to secure and take out samples of the
unauthorized products from the confiscated cartons/boxes of
Marlboro cigarettes which are stored at Four Winds Phils. Inc.
warehouse located at No. 2241 Pasong Tamo Extension, Makati
City under the direct and personal control and supervision of
Sheriff IV Tomas C. Azurin. PMPI had earlier sought such order
from the court for the purpose of laboratory analysis and scientific
testing of the samples from the confiscated cigarettes.
 On the basis of the results of the examination conducted by
PMPI on the samples obtained from the confiscated boxes of
cigarettes bearing the Marlboro brand, which confirmed the same
to be unauthorized products and not genuine Marlboro cigarettes,
the EIIB filed a case for Violation of Sections 155 and 168 in
relation to Section 170 of Republic Act No. 8293 against Jackson
Ong who is not an authorized distributor of Marlboro products in
the Philippines.”12

_______________
12 Rollo, pp. 19-21.

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110 SUPREME COURT REPORTS ANNOTATED

Ong vs. People

After the prosecution rested its case, the defense filed a

Demurrer to Evidence,13 which the RTC denied on March
26, 2003.14 The defense moved for a reconsideration of this
order but the same was denied on April 22, 2003.15
Gemma, as the lone witness for the defense, then took
the witness stand. She said that she is married to Co Yok
Piao, a Chinese national, but she still uses her maiden
name Catacutan.16 She denied that she is the Gemma Ong
accused in this case. She testified that she was arrested on
August 4, 2000, without the arresting officers asking for
her name. She said that when she pleaded to be released,
she was instructed to post a cash bond, which she did in
the amount of P12,000.00. Gemma averred that when she
posted her bond and signed her certificate of arraignment,
she did so under her real name Maria Teresa Gemma
Catacutan, as opposed to the signatures in the Inventory
and Certification in the Conduct of Search (search
documents), which she denied signing. She claimed that
she was not able to bring up her defense of mistaken
identity early on as she did not know when the proper time
to raise it was. She avowed that she was not interrogated
by the police prior to her arrest, despite the two-year gap
between it and the search of the subject premises. She
alleged that she did not know Jackson Ong and that the
prosecution witnesses, whom she first saw during her trial,
couldn’t even point to her as the person present during the
raid when they testified in court. Gemma further
asseverated that while she could not remember where she
was on September 25, 1998, she was sure that she was not
at the subject premises on that date. Gemma presented her
Identification Card issued by the Professional Regulation
Commission (PRC) to show that she is a dentist by
profession, although she claimed that she is a
businessperson in practice. She said that she used to buy
and sell gear fabrics, t-shirts, truck materials, and real
estate17 under the business name “Fascinate Trading”
based in Bulacan Street, Sta.

_______________
13 Records, pp. 229-235.
14 Id., at p. 261.
15 Id., at p. 282.
16 TSN, May 26, 2003, pp. 36-37.
17 Id., at pp. 39-40.

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Cruz, Manila, but that it had ceased operations in

February 1998.18 Gemma denied ever having engaged in
the manufacture and sale of any kind of cigarettes and
claimed that she could not even distinguish between a fake
and a genuine Marlboro cigarette.19
On September 30, 2003, the RTC convicted Gemma of
the crime as charged. The dispositive portion of its Decision
reads:

“Accordingly, this Court finds accused Gemma Catacutan

guilty beyond reasonable doubt of violation of Section 155 in
relation to Section 170 of Republic Act No. 8293 and hereby
sentences her to suffer the penalty of imprisonment of two (2)
years and to pay a fine of Fifty Thousand (P50,000.00) Pesos.
Accused is further directed to indemnify private complainant
the sum of US$4,069.12 or its peso equivalent, as actual damages.
The records of the case as against Jackson Ong is hereby
ordered archived pending his arrest.
With costs against accused Gemma Catacutan.”20

In resolving the case, the RTC narrowed down the issue

to whether Gemma Catacutan was the same accused
identified as Gemma Ong. The RTC answered this in the
affirmative as it found Gemma’s defense of mistaken
identity as untenable, especially since she claimed to be a
professional. The RTC explained:
 “Ranged against the positive and forthright declaration of the
prosecution witnesses, the mere uncorroborated and self-serving
denials of the accused cannot stand. (People vs. Hortaleza, 258
SCRA 201)
We note in disbelief that it was only in the hearing of
November 26, 2001, that accused’[s] former lawyer manifested
that accused is known as Gemma Catacutan never as Gemma
Ong (tsn, November 26, 2001, p. 3) and as admitted by her, she
never revealed her true identity when arrested, when she posted
her bail bond and even during her arraignment.

_______________
18 TSN, June 9, 2003, pp. 13-15.
19 TSN, May 26, 2003, pp. 5-30.
20 Records, pp. 330-331.

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112 SUPREME COURT REPORTS ANNOTATED

Ong vs. People

She could have protested at the time of her arrest that they
were arresting the wrong person but this she did not do. She
proceeded to post a bond for her provisional liberty, hired a
lawyer to defend her but failed to divulge the very information
that could have led to an early dismissal of the case, if true.
Her pretensions of ignorance as to the proper stage of when to
explain (tsn, May 26, 2003), p. 13 can hardly be given credit. A
dentist by profession, it is utterly incredible that she remained
meek all through-out her arrest and the posting of her bail
bond.”21

The RTC also unfurled the fact that while Gemma

claimed to have never engaged in the sale and manufacture
of Marlboro cigarettes, the address of her business
“Fascinate Trading” is registered as 1677 Bulacan Street,
Sta. Cruz, Manila, the same property raided by the EIIB
that contained the counterfeit cigarettes.22
Aggrieved, Gemma appealed the RTC’s decision to the
Court of Appeals based on the following grounds:

I
THE LOWER COURT GRIEVOUSLY ERRED IN
CONVICTING DR. MARIA TERESA GEMMA CATACUTAN
GUILTY OF THE CRIME OF VIOLATION OF THE
INTELLECTUAL PROPERTY RIGHTS LAW DESPITE UTTER
LACK OF EVIDENCE.
II
 THE LOWER COURT IN CONVICTING DR. MARIA TERESA
GEMMA CATACUTAN ON THE BASIS OF SURMISE (sic),
CONJECTURES AND GUESSWORK COMMITTED GRAVE
VIOLENCE AGAINST THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.
III
THE LOWER COURT COMMITTED SERIOUS REVERSIBLE
ERROR IN CONVICTING THE ACCUSED-APPELLANT WHO
HAD NOT BEEN POSITIVELY IDENTIFIED AND
PINPOINTED AS MANUFACTURER NOR (sic) DISTRIBUTOR
OF FAKE MARLBORO PRODUCT.

_______________
21 Id., at pp. 329-330.
22 Id., at p. 330.

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IV
THE LOWER COURT COMMITTED SERIOUS REVERSIBLE
ERROR IN NOT GIVING THE SLIGHTEST CREDENCE TO
THE UNCONTRADICTED, UNREFUTED AND CANDID
TESTIMONY OF THE ACCUSED-APPELLANT, BUT INSTEAD,
CONVICTED HER ON [T]HE BASIS OF EXTRAPOLATED
EVIDENCE NOT BORNE BY THE RECORDS.
V
THE LOWER COURT COMMITTED A GRAVE REVERSIBLE
ERROR IN CONVICTING ACCUSED-APPELLANT DESPITE
THE UTTER AND PATHETIC LACK OF EVIDENCE TO
SUSTAIN THE PROSECUTION’S LAME, SHALLOW AND
UNCONFOUNDED THEORY OF GUILT.23

The Court of Appeals found Gemma’s appeal to be

unmeritorious. It said that Gemma was positively
identified by the prosecution witnesses as the woman who
entertained them during the search of the subject premises
on September 25, 1998, and the woman who signed the
Certification in the Conduct of Search and Inventory. The
Court of Appeals agreed with the RTC’s rejection of
Gemma’s defense of mistaken identity, as she should have
raised it at the earliest opportunity, which was at the time
of her arrest, the posting of her bail bond, or during her
arraignment. The Court of Appeals held that the
amendment of the prosecution witnesses’ affidavits was
explained during the hearing, and although the original
affidavits were the ones marked during the pre-trial, the
amended ones provided the basis for the filing of the
Information against Gemma and her co-accused Jackson
Ong. The Court of Appeals also noted that the March 20,
2000 Resolution of the State Prosecutor specifically
mentioned that the search warrant was served on Gemma
Ong. The Court of Appeals then proclaimed that in the
hierarchy of evidence, the testimony of the witness in court
commands greater weight than his written affidavit.24
The Court of Appeals affirmed the conviction of Gemma
for trademark infringement under Section 155 of Republic
Act No. 8293, as

_______________
23 Rollo, pp. 29-30.
24 Id., at pp. 32-33.

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114 SUPREME COURT REPORTS ANNOTATED

Ong vs. People

the counterfeit goods seized by the EIIB were not only

found in her possession and control, but also in the building
registered under her business, Fascinate Trading. The
Court of Appeals said that the prosecution had
satisfactorily proven Gemma’s commission of the offense
since the unauthorized use of the trademark Marlboro,
owned by PMPI, was clearly intended to deceive the public
as to the origin of the cigarettes being distributed and sold,
or intended to be distributed and sold. The Court of
Appeals further sustained the penalty and damages
imposed by the RTC for being in accord with the law and
facts.25
Gemma is now before this Court with the following
assignment of errors:

A.
THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO
THE TESTIMONIES OF PROSECUTION WITNESSES
IDENTIFYING PETITIONER AS PRESENT AT THE TIME AND
PLACE WHEN THE SEARCH AND SEIZURE TOOK PLACE.
B.
THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO
THE TESTIMONIES OF PROSECUTION WITNESSES THAT
THEY SAW PETITIONER SIGN HER NAME AS “GEMMA
ONG” AS OWNER/CLAIMANT/REPRESENTATIVE (OF THE
ARTICLES SEIZED) ON THE SEARCH WARRANT (EXH. “A”),
CERTIFICATION IN THE CONDUCT OF SEARCH (EXH. “B”)
AND INVENTORY OF THE S[E]IZED ARTICLES AT THE
TIME OF THE SEARCH (EXH. “D”).
C.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
PETITIONER’S SIGNATURE IN EXHIBITS “A”, “B” AND “C”
ARE NOT HERS BUT WERE FORGED, BEING COMPLETELY
AND PATENTLY DISSIMILAR TO HER TRUE AND REAL
SIGNATURE AS SHOWN IN HER OFFICIAL I.D AS
PROFESSIONAL DENTIST.

_______________
25 Id., at pp. 34-35.

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D.
THE COURT OF APPEALS ERRED IN CONCLUDING THAT
THE AFFIDAVITS OF THE PROSECUTION WITNESSES
WHICH DID NOT MENTION PETITIONER’S PRESENCE AT
THE TIME AND PLACE OF THE SEARCH CANNOT TAKE
PRECEDENCE OVER THEIR CONTRARY TESTIMONIES IN
COURT THAT SHE WAS PRESENT AND IN FACT THE
OCCUPANT AND OWNER OF THE PREMISES FROM WHICH
SHE INITIALLY BLOCKED THEIR ENTRY INTO.
E.
THE COURT OF APPEALS ERRED IN CONCLUDING THAT
[PETITIONER] WAS THE VERY SAME PERSON WHO WAS
CAUGHT IN POSSESSION AND CONTROL OF THE
PREMISES WHERE THE COUNTERFEIT ARTICLES WERE
SEIZED BECAUSE SHE ALLEGEDLY NEVER PROTESTED
BEING WRONGFULLY ACCUSED AT THE TIME OF HER
ARREST ON 4 AUGUST 2000, WHEN SHE POSTED HER
CASH BOND AND WHEN SHE EVEN SIGNED HER NAME AS
MA. TERESA GEMMA CATACUTAN IN THE WAIVER,
UNDERTAKING AND CERTIFICATE OR ARRAIGNMENT,
ALL IN THE NAME OF THE ACCUSED AS “GEMMA ONG,
a.k.a. MA. THERESA CATACUTAN.”
F.
THE COURT OF APPEALS ERRED IN NOT ACQUITTING
[PETITIONER] FOR FAILURE OF THE PROSECUTION TO
PROVE THE GUILT OF THE ACCUSED-APPELLANT
BEYOND REASONABLE DOUBT.26
 Gemma argues that if it were true that she was in the
subject premises when it was raided on September 25,
1998, then her name and presence would have been
mentioned in the respective affidavits of Slagle and Atty.
Ancheta; and the EIIB agents who conducted the search
would have confronted, investigated, or arrested her.
Gemma insists that the fact that her name was only
mentioned for the first time in the amended affidavits
yields to the conclusion that she was not in the subject
premises when it was searched and that the testimonies of
the prosecution witnesses were perjured.27

_______________
26 Id., at pp. 47-48.
27 Id., at pp. 49-50.

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Ong vs. People

Gemma further claims that the courts below were wrong

in finding that she never protested that she was
mistakenly identified. She claims that she was arrested
without the benefit of a preliminary investigation and all
she wanted to do at that point was to “get out [of] the
clutches of overzealous and eager beaver policemen who
were exuberant in arresting an innocent party like”28 her.
Gemma also explains that her non-protest during her
arraignment was upon the advice of her former lawyer,
who said that he would correct it in the proper time during
the trial.
Respondent People of the Philippines, in its comment,29
avers that there are only two issues to be resolved in this
case, to wit:
1. THE INSTANT PETITION IS FATALLY DEFECTIVE AS IT
RAISES QUESTIONS OF FACT WHICH ARE NOT PROPER
FOR REVIEW UNDER RULE 45 OF THE REVISED RULES
OF COURT.
2. THE COURT OF APPEALS DID NOT ERR IN AFFIRMING
PETITIONER’S CONVICTION FOR VIOLATION OF
SECTION 155 IN RELATION TO SECTION 170 OF R.A. 8293
(INTELLECTUAL PROPERTY CODE OF THE
30
PHILIPPINES).

Respondent claims that a perusal of the issues in

Gemma’s petition readily discloses that only questions of
fact have been raised, which are not reviewable in an
appeal by certiorari.31 Respondent asseverates that
Gemma’s conviction was warranted as the prosecution had
sufficiently established her presence during the search of
the subject premises where she signed the search
documents as “Gemma Ong.” Moreover, the respondent
avers, Gemma failed to timely protest her arrest and raise
her claim that she is not Gemma Ong.32

_______________
28 Id., at p. 57.
29 Id., at pp. 119-139.
30 Id., at pp. 126-127.
31 Id., at pp. 127-128.
32 Id., at pp. 127-132.

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Issues
A study of the pleadings filed before this Court shows
that the only issues to be resolved are the following:
1. Whether or not accused-appellant’s petition for
review on certiorari under Rule 45 of the Rules of
Court is fatally defective as it raises questions of fact;
and
2. Whether or not Gemma’s guilt was proven beyond
reasonable doubt in light of her alleged mistaken
identity.

This Court’s Ruling

Procedural Issue
As this case reached this Court via Rule 45 of the Rules
of Court, the basic rule is that factual questions are beyond
the province of this Court, because only questions of law
may be raised in a petition for review.33 However, in
exceptional cases, this Court has taken cognizance of
questions of fact in order to resolve legal issues, such as
when there was palpable error or a grave misapprehension
of facts by the lower court.34 In Armed Forces of the
Philippines Mutual Benefit Association, Inc. v. Court of
Appeals,35 we said that although submission of issues of
fact in an appeal by certiorari taken to this Court is
ordinarily proscribed, this Court nonetheless retains the
option in the exercise of its sound discretion, taking into
account the attendant circumstances, either to decide the
case or refer it to the proper court for determination.36
Since the determination of the identity of Gemma is the
very issue affecting her guilt or innocence, this Court
chooses to take cognizance of this case in the interest of
proper administration of justice.

_______________
33  Hko Ah Pao v. Ting, G.R. No. 153476, September 27, 2006, 503
SCRA 551, 559.
34 Santos v. Sandiganbayan, 400 Phil. 1175, 1201; 347 SCRA 386, 409
(2000).
35 370 Phil. 150; 311 SCRA 143 (1999).
36 Id., at p. 165; p. 157.

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Gemma is guilty of violating Section

155 in relation to Section 170 of Re-
public Act No. 8293
Gemma was charged and convicted of violating Section
155 in relation to Section 170 of Republic Act No. 8293, or
the Intellectual Property Code of the Philippines.

“Section 155. Remedies; Infringement.—Any person who

shall, without the consent of the owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy,
or colorable imitation of a registered mark or the same container
or a dominant feature thereof in connection with the sale, offering
for sale, distribution, advertising of any goods or services
including other preparatory steps necessary to carry out
the sale of any goods or services on or in connection with
which such use is likely to cause confusion, or to cause
mistake, or to deceive; or
155.2. Reproduce, counterfeit, copy or colorably imitate a
registered mark or a dominant feature thereof and apply such
reproduction, counterfeit, copy or colorable imitation to labels,
signs, prints, packages, wrappers, receptacles or advertisements
intended to be used in commerce upon or in connection with
the sale, offering for sale, distribution, or advertising of goods or
services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive, shall be liable in a
civil action for infringement by the registrant for the remedies
hereinafter set forth: Provided, That the infringement takes
place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of
whether there is actual sale of goods or services using the
infringing material. (Sec. 22, R.A. No 166a)
Section 170. Penalties.—Independent of the civil and
administrative sanctions imposed by law, a criminal penalty of
imprisonment from two (2) years to five (5) years and a fine
ranging from Fifty thousand pesos (P50,000) to Two hundred
thousand pesos (P200,000), shall be imposed on any person who is
found guilty of committing any of the acts mentioned in Section
155, Section 168 and Subsection 169.1. (Arts. 188 and 189,
Revised Penal Code.)” (Emphases supplied.)

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Ong vs. People

A “mark” is any visible sign capable of distinguishing

the goods (trademark) or services (service mark) of an
enterprise and shall include a stamped or marked
container of goods.37
In McDonald’s Corporation and McGeorge Food
Industries, Inc. v. L.C. Big Mak Burger, Inc.,38 this Court
held:

“To establish trademark infringement, the following elements

must be shown: (1) the validity of plaintiff’s mark; (2) the
plaintiff’s ownership of the mark; and (3) the use of the mark or
its colorable imitation by the alleged infringer results in
“likelihood of confusion.” Of these, it is the element of likelihood of
confusion that is the gravamen of trademark infringement.”

A mark is valid if it is distinctive and not barred from

registration. Once registered, not only the mark’s validity,
but also the registrant’s ownership of the mark is prima
facie presumed.39
The prosecution was able to establish that the
trademark “Marlboro” was not only valid for being neither
generic nor descriptive, it was also exclusively owned by
PMPI, as evidenced by the certificates of registration
issued by the Intellectual Property Office of the
Department of Trade and Industry.40
Anent the element of confusion, both the RTC and the
Court of Appeals have correctly held that the counterfeit
cigarettes seized from Gemma’s possession were intended
to confuse and deceive the public as to the origin of the
cigarettes intended to be sold, as they not only bore PMPI’s
mark, but they were also packaged almost exactly as
PMPI’s products.41
Regarding the Claim of Mistaken Identity
Despite all these findings, Gemma has posited only a
single defense, from the RTC all the way up to this Court:
that she is not the

_______________
37 Section 121.1, Republic Act No. 8293.
38 480 Phil. 402; 437 SCRA 10 (2004).
39 Id., at pp. 424-425; pp. 24-25.
40 Records (thin folder), pp. 13-54.
41 TSN, November 27, 2001, pp. 3-14.

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120 SUPREME COURT REPORTS ANNOTATED

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Gemma Ong named and accused in this case. She bases

this claim on the alleged discrepancies in the prosecution
witnesses’ original affidavits vis-à-vis the amended ones,
which discrepancies, according to her, strongly suggest her
innocence.
This Court has time and again held that between an
affidavit executed outside the court, and a testimony given
in open court, the latter almost always prevails.

“Discrepancies between a sworn statement and testimony in

court do not outrightly justify the acquittal of an accused. Such
discrepancies do not necessarily discredit the witness since ex
parte affidavits are often incomplete. They do not purport to
contain a complete compendium of the details of the event
narrated by the affiant. Thus, our rulings generally consider
sworn statements taken out of court to be inferior to in court
testimony. x x x.”42

A reading of the original affidavits43 executed by Slagle

and Atty. Ancheta, readily reveals that they concentrated
on the facts and events leading up to the search and
seizure of the contraband materials from the subject
premises. They not only failed to mention Gemma Ong’s
presence there, but they also failed to mention the other
witnesses’ names and presence there as well. Although this
might appear to be a mistake on the part of a known and
established law firm like the Quasha Law Office, the firm
immediately sought to rectify this by having the affidavits
of Slagle, Atty. Ancheta, and Lara amended.
 If it were true that Gemma was not at the subject
premises at all on September 25, 1998, then she should
have grabbed every chance to correct this notion and
expose this mistake before she was arrested. She could
have brought up her defense of mistaken identity or
absence at the raid in the preliminary investigation
conducted prior to the issuance of her warrant of arrest;
but instead, she chose to ignore her subpoena and
disregard the preliminary investigation. Even then,
Gemma had the opportunity to raise the fact that she was
not

_______________
42 People v. Minangga and Agando, 388 Phil. 353, 362; 332 SCRA 558,
565-566 (2000).
43 Records, pp. 158-169.

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Gemma Ong; not only during her arrest, but also during
the posting of the cash bond for her bail, and more
importantly, during her arraignment, when she was
asked if she understood the charges against her.
Gemma also knew that the Information was filed against
her on the basis of the amended affidavits, thus, she could
have filed a motion to quash the information before she
entered her plea, or asked that a reinvestigation be
conducted. However, all these Gemma failed to do. We
agree with the RTC that it is highly unlikely that a person
of her stature and educational attainment would be so
meek and timid that she failed to protest against her being
wrongly identified, accused, arrested, and potentially
imprisoned. If what she says were true, she would not have
agreed to post bail or to be arraigned without at the very
least, bringing up the fact that she was not the Gemma
Ong the police officers were looking for. In addition, her
own lawyer, Atty. Maglinao, brought up the fact that she
was not Gemma Ong, only for the purpose of correcting the
Information, and not to contest it, to wit:

WITNESS ROGER SHERMAN SLAGLE UNDER THE SAME OATH

FOR CONTINUATION OF DIRECT EXAMINATION BY:
ATTY. ERESE:
      With the kind permission of the hon. court.
COURT: Proceed.
 ATTY. MAGLINAO:
          I would just want to be on record that my client, Gemma
Catacutan has never been known as Gemma Ong because her real
name is Gemma Catacutan.
COURT: Do you have any objection to the amendment of the
information?
ATTY. MAGLINAO:
     No, your Honor. May we request to correct the information from
Gemma Ong to Gemma Catacutan.44

_______________
44 TSN, November 26, 2001, pp. 3-4.

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122 SUPREME COURT REPORTS ANNOTATED

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Gemma further accuses the prosecution witnesses of

falsely testifying and of perjuring themselves just so they
can satisfy a big client like PMPI by showing that
somebody had been arrested for counterfeiting its
cigarettes. The crimes Gemma is imputing on these
witnesses are serious crimes, and in the absence of concrete
and convincing evidence, this Court could not believe her
mere allegations that imply that these people would
destroy someone’s life just so they can please a client, more
so over mere cigarettes. In Principio v. Hon. Barrientos,45
we said:

“Bad faith is never presumed while good faith is always presumed

and the chapter on Human Relations of the Civil Code directs
every person, inter alia, to observe good faith, which springs from
the fountain of good conscience. Therefore, he who claims bad
faith must prove it. For one to be in bad faith, the same must be
“evident.” x x x.”46

The prosecution witnesses, contrary to Gemma’s claim,

had positively identified her as the person who initially
refused the search team entrance, then later acquiesced to
the search operations. Slagle explained that even though
he mentioned Gemma only in his amended affidavit, he
was sure that she was at the subject premises on the day
that they searched it:

Testimony of Roger Sherman Slagle

ATTY. MAGLINAO:
 Q In this amended affidavit you mentioned the name, Gemma
Catacutan as one of the accused?
A Yes sir.
Q Can you tell the court how you were able to include the
name of Gemma Catacutan in your amended affidavit,
when in fact it did not appear in the first affidavit?
A When we arrived she was there and she was very nervous
and upset.
xxxx

_______________
45 515 Phil. 799; 478 SCRA 639 (2005).
46 Id., at p. 811; p. 650.

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AIt is very clear to me when I arrived there that she was

somehow involved.47 (Emphases ours.)

Lara on the other hand, even pointed to her and thus

positively identified her to be the one who had signed the
search documents,48 as the owner of the subject premises,
to wit:
Testimony of Jesse Lara
ATTY. FREZ
Q: Mr. Witness, do you know this person who wrote the name
Gemma Ong?
A: Yes, sir, Gemma Ong is the owner of the premises when we
served the search warrant and also, she was the one who refused us
to gain entry during the service of the search warrant.
Q: Were you able to gain entry at the premises?
A: Yes, sir.
Q: So, as regard to the person whom you identify as the one
who refused you to gain entry, would you be able to identify
this person?
A: Yes, sir, that lady in pink is Mrs. Gemma Ong.
(As witness is pointing to the accused Gemma Ong).
Q: Mr. Witness, why do you say that the person whom you
pointed to us is the one who wrote the name Mrs. Gemma
Ong?
WITNESS
Because when we served the search warrant she signed it in
our presence and that is her own signature.
xxxx
 ATTY. FREZ
Q: So, Mr. Witness, in this Inventory, we made some markings during
the pre-trial conference and I see here above the signature
(Owner/Representative), there exist a handwritten name which
reads GEMMA ONG and above it, there exist a signature, are you
familiar with this person which appears to be Gemma Ong?
A: Yes, sir, Gemma Ong signed that in my presence.

_______________

47 TSN, November 27, 2001, pp. 16-17.

48 Records, pp. 153 and 155.

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124 SUPREME COURT REPORTS ANNOTATED

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Q: Your Honor, during the pre-trial conference, it was previously

marked as Exhibit “D-1”. Mr. Witness, I also see here a Verification
but there also exist an entry below the name and I quote
“Owner/Claimant/Representative”, there appears a handwritten
name Gemma Ong and a signature above it, are you familiar with
this person which appears to be Gemma Ong?
A: Yes, sir, Gemma Ong signed that in my presence.
xxxx
Q: Mr. Witness, in this document which is the certification in the
Conduct of Search and I have here above the entry (Owner/
Representative), a handwritten name which reads Gemma Ong and
there exist a signature above the handwritten name, can you
identify the signature?
A: Yes, sir, this was signed by Gemma Ong in my presence.49
(Emphases ours.)

Lara further attested to the fact that the search warrant

was served on Gemma, who later on entertained the search
team:
ATTY. FREZ
Mr. Witness, the person to whom you served the search warrant is
identified as Mrs. Gemma Ong, do you know her relationship with
the accused Jackson Ong?
ATTY. FERNANDEZ
Objection, your honor, the witness would be incompetent . . .
COURT
May answer.
(The stenographer read back the question).
WITNESS
I am not familiar with the relationship of Mrs. Gemma Ong with
Jackson Ong because during the service of the search warrant, Mrs.
 Gemma Ong was there together with two employees and when I
asked where was Jackson Ong, she was the one who entertained us.
ATTY. FREZ
So, the search warrant was served against Gemma Ong?

_______________

49 TSN, January 22, 2002, pp. 15-22.

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WITNESS
Yes, Sir.50

Positive identification of a culprit is of great weight in

determining whether an accused is guilty or not.51 Gemma,
in claiming the defense of mistaken identity, is in reality
denying her involvement in the crime. This Court has held
that the defense of denial is insipid and weak as it is easy
to fabricate and difficult to prove; thus, it cannot take
precedence over the positive testimony of the offended
party.52 The defense of denial is unavailing when
placed astride the undisputed fact that there was
positive identification of the accused.53
While Gemma claims she does not know Jackson Ong,
the subject premises where the counterfeit cigarettes were
seized was registered under her admitted business
“Fascinate Trading.”54 Aside from the bare allegation that
she had stopped operations in the subject premises as early
as February 1998, she has neither proven nor shown any
evidence that she had relinquished control of the building
after that date. Gemma’s allegation that she did not sign
the search documents, and that the signatures therein did
not match the signature on her PRC identification card,
must also be struck down as she has not shown proof that
her PRC signature is the only way she has ever signed her
name. She could have, at the very least, gotten a
handwriting expert to testify on her behalf that there is no
way that the signatures in the search documents and the
signature on her PRC identification card could have been
written by one and the same person; instead, she relied on
the flimsy contention that the two signatures were, on their
face, different.

_______________
50 TSN, January 22, 2002, pp. 24-25.
 51 People v. Bihag, Jr. and Hilot, 396 Phil. 289, 296; 342 SCRA 128,
135 (2000).
52 People v. Pangilinan and Hamton, 443 Phil. 198, 235-236; 395 SCRA
156, 185 (2003).
53 People v. Quimzon, 471 Phil. 182, 203; 427 SCRA 261, 280 (2004).
54 Records, p. 298.

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126 SUPREME COURT REPORTS ANNOTATED

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Gemma’s defense consists of her claim of mistaken

identity, her denial of her involvement in the crime, and
her accusation against the prosecution witnesses of
allegedly giving false testimonies and committing perjury.
These are all weak, unproven, and unfounded claims, and
will not stand against the strong evidence against her.
WHEREFORE, this Court DENIES the Petition. The
June 16, 2005 Decision of the Court of Appeals in CA-G.R.
CR No. 28308 is AFFIRMED.
SO ORDERED.

Corona (C.J., Chairperson), Carpio,** Del Castillo and

Perlas-Bernabe,*** JJ., concur.

Petition denied, judgment affirmed.

Note.—Court of Appeals incorrectly concluded that all

actions involving trademarks, including charges of unfair
competition are under the exclusive jurisdiction of civil
courts. (In-N-Out Burger, Inc. vs. Sehwani, Incorporated,
575 SCRA 535 [2008])

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