Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 24
Manila
-o0o-

REPUBLIC OF THE PHILIPPINES ,

Plaintiff,

-versus- SEARCH WARRANT No. 13-22138

For: Violation of Sec. 155 in
JOHN and/or JANE DOE/s, Owner/s relation to Sec. 170 of R.A.
and/or Operator/s of Wenzhuan No. 8293
Marketing Corp., located at YKS (Trademark Infringement)
Complex I, Anibong, Tacloban City ,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - x

MOTION TO QUASH THE SEARCH WARRANT and/or

SUPPRESS ILLEGALLY SEIZED EVIDENCE

COMES NOW, WENZHUAN MARKETING CORP., by the through the undersigned

counsel, unto this Honorable Court most respectfully moves for the quashal of Search
Warrant No. 13-22138 issued in the above-entitled case and avers:

1. WENZHUAN MARKETING CORPORATION is a duly registered and existing

corporation with principal office located at YKS Complex I, Anibong District, Tacloban
City, and for purpose of this motion, is duly represented by IRENEO L. DAYA, JR., of legal
age, Filipino, with postal address at Unit 6-A, 6th floor, Icon Plaza, 26th Street, Bonifacio
Global City, Taguig City, by virtue of a Board Resolution1 issued by the Board of Directors
of Wenzhuan Marketing Corporation for the purpose.

2. On October 4, 2018, Wenzhuan Marketing Corporation received a Subpoena 2

from the Office of the City Prosecutor, Tacloban City, addressed to a certain “BENSON
SIY” and requesting him to submit his Counter-Affidavit, documents and other
countervailing evidence in the case entitled: “RE: P.p. vs. BENZON SIY for Viol. of Sec.
155 in Relation to Sec. 168 and 170 of R.A. 8293 (Intellectual Property Code, Trademark
Infringement)”, with NPS Docket No. VIII-03-INV-18I-00584.

1
Annex “1”.
2
Annex “2”.

Page 1 of 10
 3. The abovementioned case is based on the Complaint-Affidavit3 dated
September 28, 2018 filed by a certain Renato Antonia, allegedly an attorney-in-fact of
Phelps Dodge Philippines Energy Products Corporation, for Violation of Section 155 in
relation to Sections 168 and 170 of Republic Act No. 8293 (Trademark Infringement)
against “BENSON SIY, JOHN/JANE DOE/s, Owners and/or Operators of WENZHUAN
MARKETING CORP, located at YKS Complex I, Anibong, Tacloban City”.

4. The following alleged facts can be inferred from the recitations of Renato
Antonia’s Complaint-Affidavit and attachments, to wit:

a. Upon application by Special Investigator III Glenn M. Lacaran of the

National Bureau of Investigation, Intellectual Property Rights Division, Taft Avenue,
Manila, and his witness, Mr. Renato R. Antonio, this Honorable Court issued Search
Warrant No. 13-221384 on August 13, 2013 based on the finding that there was
probable cause to believe that a violation of Section 155 in relation to Section 170
of Republic Act No. 8293 (Trademark Infringement) has been committed, or is being
committed, and that there are good and sufficient reasons to believe that JOHN
and/or JANE DOE/s, Owner/s and/or Operators of Wenzhuan Marketing Corp.,
located at YKS Complex I, Anibong, Tacloban City, have in their possession, control
and custody at the stated address the following:

i. Counterfeit “Phelps Dodge” items such as Phelps Dodge Electrical

Wires and Phelps Dodge PDX Trademark;

ii. Labels, boxes, packages, wrappers, empty container, and other

paraphernalia, including advertising and promotional materials, which
are being used or intended to be used in the illegal age and
unauthorized sale, offering for sale and/or distribution of counterfeit
“Phelps Dodge” items such as Phelps Dodge Electrical Wires and
Phelps Dodge PDX Trademark;

iii. Invoices, ledgers, journals, official receipts, delivery receipts, purchase

documents, and all other books of account and documents pertaining
to the illegal and unauthorized sale, offering for sale and/or

3
Annex “3”, with attachments.
4
Ibid., Annex “L”.

Page 2 of 10
 distribution of counterfeit “Phelps Dodge” items such as Phelps Dodge
Electrical Wires and Phelps Dodge PDX Trademark; and

iv. Computers, software, diskettes, tapes, hard drives, or any other

equipment or device capable of accepting, recording and/or storing
information pertaining to the illegal and unauthorized sale, offering for
sale and/or distribution of counterfeit “Phelps Dodge” items such as
Phelps Dodge Electrical Wires and Phelps Dodge PDX Trademark.

b. On August 14, 2013, elements of NBI-IPRD, together with Mr. Renato R.

Antonio, implemented Search Warrant No. 13-22138 and conducted a search in the
above address and per the Receipt/Inventory of Property Seized5 the following items
were allegedly found and seized:

i. Four (4) boxes of PACIFLEX PDX #14/2;

ii. Four (4) boxes of PACIFLEX PDX #10/2;
iii. Ten (10) boxes of OMEGA PDX #10/2C
iv. Six (6) boxes of OMEGA PDX #12/2C;
v. Three (3) boxes of OMEGA PDX #14/2C;
vi. Three (3) boxes of HYPERTECH PDX #10/2; and
vii. One (1) box of HYPERTECH PDX #12/2.

5. From the foregoing alleged facts, the said search warrant was applied for and
issued for violation of Section 155 in relation to Section 170 of Republic Act No. 8293,
otherwise known as the Intellectual Property Code of the Philippines and in anticipation
of a criminal action to be filed against the respondent.

6. In fact, “RE: P.p. vs. BENZON SIY for Viol. of Sec. 155 in Relation to Sec. 168
and 170 of R.A. 8293 (Intellectual Property Code, Trademark Infringement)” with NPS
Docket No. VIII-03-INV-18I-00584 is now the anticipated criminal action filed against the
respondents. Notably, however, the said criminal action was instituted only on September
28, 2018, or after more than FIVE (5) YEARS since Search Warrant No. 13-22138 was
issued on August 13, 2013.

7. Based on the above facts, Rule 126 (Search and Seizure) of the Revised on
Criminal Procedure is the applicable rule in the issuance of the search warrant assailed
herein.

5
Ibid., Annex “M”.

Page 3 of 10
 8. In the case of Century Chinese Medicine Co., et al. vs. People of the Philippines
and Ling Na Lau,6 the Honorable Supreme Court ruled:

“The applications for the issuance of the assailed search warrants were for
violations of Sections 155 and 168, both in relation to Section 170 of Republic
Act (RA) No. 8293, otherwise known as the Intellectual Property Code of the
Philippines. Section 155, in relation to Section 170, punishes trademark
infringement; while Section 168, in relation to Section 170, penalizes unfair
competition, to wit:

Sec 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

While

Sec. 168. Unfair Competition, Rights, Regulation and Remedies. –

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 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;

And

6
G.R. No. 188526, November 11, 2013.

Page 4 of 10
 SEC. 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 (P50,000.00) to Two hundred thousand pesos
(P200,000.00) shall be imposed on any person who is found guilty
of committing any of the acts mentioned in Section 155
[Infringement], Section 168 [Unfair Competition] and Subsection
169.1 [False Designation of Origin and False Description or
Representation]

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.”

9. Section 8, Rule 126 of the Rules of Criminal Procedure, which governs the
issuance of the assailed Search Warrant No. 13-22138, provides:

“Section 8. Search of house, room, or premise to be made in presence of two

witnesses. — No search of a house, room, or any other premise shall be made
except in the presence of the lawful occupant thereof or any member of his
family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality.”

10. An examination of the allegations in the Affidavit-Complaint of Renato Antonia

and the Receipt/Inventory of Property Seized attached thereto, it is clearly evident that
the search in the premises described in Search Warrant No. 13-22138 was conducted in
the presence only of one (1) witness, a certain Ma. Rosario C. Bactol, but in the absence
of any of the premises’ lawful occupant or any member of his family. In all the documents
submitted and filed, there is nothing to show or indicate the presence of the lawful
occupants thereof during the conduct of the search.

11. Thus, the said Complaint-Affidavit executed more than five (5) years
therefrom still identified the respondents as John/Jane Doe/s. Otherwise, the elements
of the NBI-IPRD who conducted the search could have easily identified the lawful

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occupant/s thereof or required them to identify themselves had they been physically
present, without the need of Ma. Rosario C. Bactol as witness.

12. The rule that "two witnesses of sufficient age and discretion residing in the
same locality" must be present applies only in the absence of either the lawful occupant
of the premises or any member of his family.7 But in this case, even the two-witness
requirements was not complied with as only one (1) witness was present.

13. So jealously guarded is the fundamental dictum that searches and seizure
smust be done through a valid and enforceable judicial warrant, otherwise they become
unreasonable and susceptible to challenge. Commenting on the importance of upholding
such inviolable right, the Supreme Court in the case of People vs. Burgos,8 held:

“Article IV, Section 3 of the Constitution provides:

The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath
or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and
the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable

invasion of the privacy and liberty of a citizen as to his person, papers and
effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why
this right is so important:

It is deference to one's personality that lies at the core of this right,

but it could be also looked upon as a recognition of a constitutionally
protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is
sought to be guarded is a man's prerogative to choose who is
allowed entry to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be
welcome but likewise in the kind of objects he wants around him.
There the state, however powerful, does not as such have access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the
privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966],

7
People vs. Punzalan, G.R. No. 199087, November 11, 2015.
8
G.R. No. L-68955 September 4, 1986.

Page 6 of 10
 Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In
the same vein, Landynski in his authoritative work (Search and
Seizure and the Supreme Court [1966], could fitly characterize this
constitutional right as the embodiment of a 'spiritual concept: the
belief that to value the privacy of home and person and to afford
its constitutional protection against the long reach of government is
no legs than to value human dignity, and that his privacy must not
be disturbed except in case of overriding social need, and then only
under stringent procedural safeguards.' (Ibid, p. 47).”

14. Moreover, under the Rules of Procedure For Intellectual Property Rights
Cases,9 Rule 11, Section 4 thereof, it is provided:

“SEC. 4. Disposition of goods seized pursuant to search warrant. –If a

criminal action has been instituted, only the trial court shall rule on a motion
to quash a search warrant or to suppress evidence obtained thereby or to
release seized goods.

It shall be the duty of the applicant or private complainant to file a motion

for the immediate transfer of the seized goods to the trial court, which motion
shall be immediately acted upon by the issuing court.

If no criminal action has been instituted, the motion to quash a search

warrant or to suppress evidence obtained thereby or to release seized goods
may be filed in and resolved by the issuing court. If pending resolution of the
motion, a criminal case is meanwhile filed in another court, the incident shall
be transferred to and resolved by the latter court.

Upon motion of the party whose goods have been seized, with notice to
the applicant, the issuing court may quash the search warrant and order the
return of the seized goods if no criminal complaint is filed within sixty (60)
days from the issuance of the search warrant.

If no criminal action is filed before the office of the prosecutor and no

motion for the return of the seized goods is filed within sixty (60) days from
the issuance of the search warrant, the issuing court shall require the parties,
including the private complainant, if any, to show cause why the search
warrant should not be quashed.”

15. As earlier noted, the criminal action, by way of a Complaint-Affidavit, was filed
only last September 28, 2018, or more than five (5) years since the issuance of Search
Warrant No. 13-22138. This is definitely more than the 60-day period prescribed in the
afore-quoted rule.

16. It is worthwhile to stress at this point, that respondent/s had no knowledge or

information of any and all matters and circumstances relative to this case and/or

9
A.M. No. 10-3-10-SC.

Page 7 of 10
proceedings until Wenzhuan Marketing Corp. received a copy of the Subpoena from the
Office of the City Prosecutor, Tacloban City, in NPS Docket No. VIII-03-INV-18I-00584.

17. Under the circumstances, Search Warrant No. 13-22138 is definitely quashable
and the items allegedly seized and obtained by virtue thereof as evidence must be
suppressed, or released.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that Search Warrant

No. 13-22138 issued against the respondent/s be QUASHED and that any evidence
obtained thereby be SUPPRESSED for being inadmissible for any purpose in any
proceeding.

Respondent prays for such just and equitable relief under the premises.

Taguig City for the City of Manila, October 10, 2018.

LIBANAN LAW OFFICE

Counsel for the Respondents
Unit 6A, 6th Floor, Icon Plaza, 26th Street,
Bonifacio Global City (BGC), Taguig City 1630
Tel. No. +632-817-5725 ǀ +632-817-5677

By:

MARCELINO C. LIBANAN
Roll of Attorney No. 35925
IBP Lifetime Member No. 01806
PTR No. A-3758232, January 10, 2018, Taguig City
MCLE Compliance No. V-0026332

NORMAN G. TANSINGCO
Roll of Attorney No. 37471
IBP Lifetime Member No. 00865
PTR No. A-3758233, January 10, 2018, Taguig City
MCLE Compliance No. VI-0001107

Page 8 of 10
 ALVIN M. NAVARRO
Roll of Attorney No. 52796
IBP Lifetime Member No. 08805
PTR No. A-3758231, January 10, 2018, Taguig City
MCLE Compliance No. VI-0004858

NOTICE OF HEARING

THE BRANCH CLERK OF COURT

Regional Trial Court, Branch 24
Manila City Hall, City of Manila

OFFICE OF THE CITY PROSECUTOR

3rd Floor, Manila City Hall
City of Manila

GREETINGS:

Please take notice that the undersigned counsel will motion submit the foregoing motion
to the Honorable Court for its consideration and approval on October 26, 2018 at 8:30
o’clock in the morning or as soon thereafter as matter and counsel may be heard.

NORMAN G. TANSINGCO

EXPLANATION OF SERVICE

A copy of the foregoing motion was to Mr. Renato R. Antonia by registered mail
with return card, personal service being impractical due to distance.

NORMAN G. TANSINGCO

Page 9 of 10
Copy furnished by personal service:

OFFICE OF THE CITY PROSECUTOR

3rd Floor, Manila City Hall
City of Manila
Received by : _____________________
Date : _____________________

SPECIAL INVESTIGATOR III GLENN M. LACARAN

Applicant for Search Warrant No. 13-221138
Intellectual Property Rights Division (IPRD)
National Bureau of Investigation (NBI)
Taft Avenue, Manila
Received by : _____________________
Date : _____________________

MR. RENATO R. ANTONIA

Attorney-in-Fact
Phelps Dodge Philippines Energy Products Corporation
#29-A, Marunong Street, Brgy. Central,
Quezon City
Registry Receipt No. : ___________________
Date : ___________________
Post Office at : ___________________

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