REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
PASAY CITY
Branch 117

PEOPLE OF THE
PHILIPPINES,

- versus - Criminal Case No. M-PSY-08-03717-CR

SHIRLEY F. TORRES,
Accused.
x---------------------------------------------------------------------------------------------------------x

REPLY

Accused, by counsel, respectfully states:

1. The right of accused Shirley Torres to be presumed innocent until her guilt
has been proved beyond reasonable can never be rendered moot unless her conviction has
attained finality. This right cannot be downgraded and swept aside just by merely alluding
to earlier determinations which are precisely the ones being questioned via this Motion for
Reconsideration. This is precisely the reason why the accused decides to emphasize,
among others, her constitutional entitlement.

2. The Honorable Court must note that nowhere in the Comment/Opposition

does it appear that the Prosecution questioned the novelty of the issues raised by the
accused. Hence, it should be considered to have admitted that the points she raised were
not taken on in the earlier proceedings that led to her conviction. As such, the Motion for
Reconsideration, presented errors both in fact and in law, that may be reviewed so that the
wrongful conviction of the accused may be properly addressed and eventually reversed.

3. Both actual and likelihood of confusion cannot be presumed or inferred

from purportedly proven circumstances as the subject proceedings are in criminal in nature.
That conviction must be based on evidence beyond reasonable doubt is a well-entrenched
principle and doctrine in this jurisdiction. Pursuant thereto, all elements of the accusation
must be proved beyond reasonable doubt. Failure or inability of the prosecution to
substantiate any of the elements of the offense charged is fatal to the cause of the people;
it renders inevitable the acquittal of the accused.1

1
Ignacio R. Bunye, et al. v. Sandiganbayan, et al., G.R. No. 122058, May 5, 1999, 306 SCRA 663.
 4. In criminal cases, presumptions should be taken with caution especially in
light of serious concerns that they might water down the requirement of proof beyond
reasonable doubt. As special considerations must be given to the right of the accused to be
presumed innocent, there should be limits on the use of presumptions against an accused.2
Conviction must be founded on facts, not on mere inferences and presumptions.3

5. Accused argues that there is neither actual nor likelihood of confusion as

there is absolutely no evidence to establish this element. And it will be quite unfair for her
if such conclusion is only drawn from the fact that there was one instance that SM wrongly
credited the account of Tezares to Sasay’s Closet Co. (SCC). The reason is simple and has
already been explained in the Motion for Reconsideration: one cannot second-guess what
SM was thinking about that time, and surmise as to the real cause why it committed a
mistake. Otherwise, the right of the accused that her guilt be proved by evidence that
excludes reasonable doubt will be violated.

Note, that essentially, the conviction of the accused rests on this premise.

6. Also, the fact that the accused wrote and informed SM that there was a
mistake was indicative of lack of any intent to perpetrate the act complained of. In other
words, there was neither intent nor any predisposition to misrepresent. Furthermore, if SM
was indeed actually or likely to be confused, then upon being advised and upon eventually
learning the difference between Tezares and SCC, it should have revoked the accreditation
given to Tezares had it indeed relied on the sameness of the two (2) entities or the
“goodwill” of the private complainants which was allegedly taken advantage of by the
accused.

7. Accreditation from SM could have been based on a lot of other factors. It

was not actually proven during trial that the company would not have recognized Tezares
had it not been for SCC. It would have been too easy for the Prosecution to secure
attendance by compulsory process of any personnel from SM who could have attested to
what they wanted to prove in the first place. However, they did not. They opted to rely on
inferences, which as stated earlier, could not be used to justify conviction.

2
Modesto Mabunga v. People of the Philippines, G.R. No. 142039, May 27, 2004, 429 SCRA 510.

3
People of the Philippines v. Luz Carpio vda. De Quijano, et al., G.R. No. 102045, March 17, 1993, 220
SCRA 66; People of the Philippines v. Tsang Hin Wai, et al., G.R. No. L-66389, September 8, 1986, 144
SCRA 22.

2
 8. Accused never misrepresented to SM as to its affiliation with SCC. The tag
that was presented by private complainant was never authenticated during trial. For lack
of proper authentication, the accused had been deprived of a viable tool to test the facts
intended to be established by the photograph depicting the tag. Only the daughter of private
complainant may be asked and may competently answer as to the circumstances
surrounding the taking. True enough, during her cross-examination, private complainant
was and could actually afford to be evasive.4

9. Also, had they really been keen and truthful on this allegation, the
Prosecution should have reproduced the tag along with the merchandise to which it was
attached. Once again, they did not. It would have been very easy for them to purchase it
and introduce it during trial. They nevertheless chose to present a photograph that can be
easily tampered with, altered or invented even by the most basic computer technology.

10. Furthermore, the contents of the photograph are the ones subject of the
inquiry. Thus, the original of the tag, being the best evidence, should have been produced.
In its absence, the photograph of a tag should be considered a machine copy which has no
evidentiary value and may even be considered spurious.

11. The argument that the use in relation to any goods under Section 169.1 of
the Intellectual Property Code misses the fundamental point why the acts therein
enumerated are treated as offense. The provision covers passing off. As such, it
contemplates a good or a service.

12. As a matter of fact, one should not even be careful before he could actually
notice that such element is actually a requirement. Section 169.1 of the IPC provides:

169.1. Any person who, on or in connection with any

goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false
or misleading description of fact, or false or misleading
representation of fact, which:

13. It is clearly evident that the use in commerce of any word, term, name,
symbol, or device, or any combination thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading representation of fact is qualified by
the phrase “on or in connection with any goods or services, or any container for
goods.”

4
TSN (Imelda Perez) dated February 22, 2010, pp. 11-14.

3
 14. It is clear therefore as to what is obvious and what is not. This element (or
phrase) was not addressed by the Prosecution in the course of the trial.

Worse, it was not even alleged in the Information in violation of the right of
the accused to be informed of the nature or cause of accusation against her.

Note that the Information specifically alludes to accreditation with SM and not to
any good to which any misrepresentation was used. The alleged representation of the
accused did not refer to any good, service or container for goods such that it would trigger
confusion as to her affiliation with SCC.

15. Reference to Exhibit “O” or the transcript of stenographic notes taken

during the proceedings before Branch 24 of the Regional Trial Court of Manila is an
attempt to mislead the Honorable Court. Goodwill does not spring from knowledge by any
personnel from SM that RGP and SCC are one and the same. Knowledge is different from
reputation.

16. No matter how the Prosecution explains, there are errors and lapses in
evidence that both disprove the culpability of the accused and establish that the crime with
which she had been charged was inexistent. All the elements under Section 169.1 of the
IPC had not been fully met. To remedy this failure, however, the Prosecution attempts to
muddle the issues by referring to other acts they deem criminal (which is denied) but are
totally beyond the scope of the Information under which the accused had been charged.

Filing and Service by Post

This Reply and copies thereof are filed with the Honorable Court and served upon
the other parties by registered mail due to distance and time constraints rendering personal
service impractical and inefficient.

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 RELIEF

WHEREFORE, it is respectfully prayed that the Decision of conviction by the

Honorable Court on October 6, 2010 be reversed and set aside, and a new judgement be
rendered acquitting accused Shirley Torres of the crime charged.

Other equitable reliefs are also prayed for.

Makati City for Pasay City, November 30, 2010.

FORTUN NARVASA & SALAZAR

Counsel for Accused
23rd Floor, Multinational Bancorporation Centre
6805 Ayala Avenue, City of Makati
Telephone No. 8128670
Fax No. 812-7199
Email: fnslaw@info.com.ph

By:

BAYANI B. LOSTE
PTR No. 0005201; 1-05-2010; Makati City
IBP No. 631987; Lifetime; Eastern Samar Chapter
Roll of Attorney’s No. 44721
MCLE Compliance No. III - 0004887; 9-22-2009

ALBERT LEE G. ANGELES

PTR No. 0037195; 1-05-2010; Makati City
IBP No. 803531; 1-04-2010; Makati City Chapter
Roll of Attorneys No. 56890
MCLE Compliance No. III-0009245; 3-8-2010

Copy furnished by Post:

(Explanation on p. 4)

Atty. Romando S. Artes

Private Prosecutor
Cruz Artes So & Associates
Unit 823 Cityland Herrera Tower
V.A. Rufino corner Valero Street
Makati City

Office of the City Prosecutor

Pasay City Hall of Justice
Pasay City
1632-1-02A