THE BORDEN COMPANY, PETITIONER, VS. DOCTORS PHARMACEUTICALS INC., AND CELEDONIO AGRAVA, DIRECTOR OF PATENTS, RESPONDENTS.

The petitioner prays the respondent Director of Patents be directed—

(a) to forward and certify to the clerk of
this Court the record of Opposition No. 3, Series of 1949 entitled “The
Borden Company, Opposer-Registrant vs. Doctors
Pharmaceuticals, Inc., Respondent-Applicant so that the decision of
said Director of Patents of August 31, 1950 may be reviewed by this
Court; and

(b) that the decision of the Director of Patents of August 31, 1950, be vacated and set aside.

In the decision referred to, the respondent Director of Patents
overruled the objection of the petitioner to the registration of
“Hemo—Vim” as trademark for a drug in liquid form for the cure of
hypocromic, nutritional or secondary anemias, beri-beri, preventive
chronic blood loss, and as tonic and stomachic prepared by the
respondent Doctors Pharmaceuticals Inc.

The petitioner’s opposition to the registration of the “Hemo-Vim”
as trade-mark alleges that on 17 June 1947 it had previously registered
the trade-mark “Hemo” for a vitamin and mineral fortified preparation
for malted food drinks in powder form under certificate No. 2012 issued
under the provisions of Act No. 666, which was surrendered to the
Patent Office pursuant to sec. 21 (a) of Rep. Act No. 166 and
in lieu thereof a new certificate No. 658-S was issued on 23 September
194# by the respondent Director of Patents.

In the caption of the petition the following words appear:
“CERTIORARI UNDER RULE 67, RULES OF COURT.” It was filed on 12 October
1950. On 29 November, a motion to dismiss was filed by the respondent
Doctors Pharmaceuticals Inc. on the ground that, under the provisions
of Rep. Acts Nos. 165 and 166, the petitioner has no right to appeal
from the decision of the Director of Patents, and if the petitioner had
such right it lost it for failing to file a notice of appeal and to pay
the required appeal fee with the Director of Patents within 30 days
from notice of the decision, as provided for in sec. 63 of Rep. Act No.
165. On 4 December, this Court directed the respondents to answer the
petition within ten days from notice. On 13 December, the respondent
Doctors Pharmaceuticals Inc. filed its answer. On 16 December, the
Director of Patents also filed his answer. On & January 1951, the
hearing of the case was set for the 15th of the same month, but on 12
January, attorneys for the petitioner filed a motion for withdrawal of
the petition pursuant to instructions of their client. This motion is
objected to by the respondent Doctors Pharmaceuticals Inc., unless the
petitioner reimburse the respondent Doctors Pharmaceuticals Inc. for
what it had paid and agreed to pay for attorney’s fees amounting to
P1,500, and the dismissal of the petition be with prejudice.

The first question is whether the dismissal asked by the petitioner
should be with terms, as prayed for by the respondent Doctors
Pharmaceuticals Inc., and the second is whether such dismissal should
be with prejudice.

Under the facts and circumstances of the case we do not believe
that the respondent Doctors Pharmaceuticals Inc. is entitled ^[1]

Whether the dismissal of the petition should be with prejudice, as
we have not reviewed the decision of the Director of Patents we are not
in a position to express our opinion as to whether the dismissal of the
petition should be with prejudice. Section 25 of Rep. Act No. 166
authorizes the bringing of an action to cancel registered trade-marks
and trade names. If an action be brought by the petitioner for the
cancellation of the registered trade-mark of the respondent Doctors
Pharmaceuticals Inc., then the competent court would be in a position
to determine whether the dismissal of this petition was with or without
prejudice.

The petition is dismissed, with costs against petitioner.

Paras, C. J., Feria, Pablo, Bengzon, Tuason, Reyes, Jugo and Baustista Angelo, JJ., concur.

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^[1] Tan Ti vs. Alvear, 26 Phil., 566, 571.