M. A. CLARKE, PLAINTIFF AND APPELLANT, VS. MANILA CANDY CO. (LTD.), DEFENDANT AND APPELLEE.

The complaint filed in this action (omitting the exhibits) is as follows:

“Plaintiff states:

“I. That the defendant is a corporation organized under the laws of
the Philippine Islands, with principal office and residence in the city
of Manila.

“II. That the plaintiff for twelve years last past has been and
still is engaged in the manufacture of a large line of confectionery
products including candy of various and nu- merous kinds in the said
city of Manila.

“III. That ever since the year 1905, the plaintiff has used as a
trade-mark to designate his various candy products the representation
of a rooster, and that until the wrongful and unlawful acts of the
defendant hereinafter specified, no other manufacturer of or dealer in
candy in the Philippine Islands has used such representation in
connection with the manufacture and sale of candy in any form.

“IV. That on the 10th day of November, 1911, the plaintiff caused to
be duly filed and registered in the division of archives, patents,
copyrights and trade-marks for the Philippine Islands, said trade-mark,
as shown in Exhibit A hereto attached and made a part of this complaint.

“V. That ever since said registration, and for a considerable time
before it, the label containing said trade-mark has been used
extensively by the plaintiff upon all packages containing the candy of
plaintiff.

“VI. That from the year 1905, the plaintiff has used as a wrapper,
for individual pieces of candy, paper bearing said rooster trade-mark
in substantially the form shown on Exhibit B hereto attached and made a
part hereof.

“VII. That since July 31, 1911, plaintiff has distributed in
connection with the manufacture and sale of his candy many hundreds of
the cards of which Exhibit C hereto attached and made a part hereof is
a sample.

“VIII. That since August, 1911, plaintiff has used as an advertising
poster upon shipping cases and in public places generally throughout
the Islands many hundreds of the labels of which Exhibit D hereto
attached and made a part hereof is a sample.

“IX. That since January, 1912, plaintiff has used for various kinds
of his candy, paper boxes, of which Exhibit E hereto attached and made
a part hereof, is a sample.

“X. That at various times prior to January 12, 1912, the date of
incorporation of the defendant company, plaintiff advertised his candy
products extensively in the local papers, as shown by Exhibits F and G
hereto attached.

“XI That besides the use, display, and advertising of said mark in
the manner above indicated, plaintiff has during public festivals held
in the city of Manila for several years past, and within the exhibition
grounds of said festivals, used paper mache roosters of large size,
carried about said grounds during the exhibition with the words Clarke’s candies written upon said roosters.

“XII. That in consequence of such use, display and adVertising of
said rooster as the trade-mark for plaintiff’s candies, said candies
have for several years last past been known and are now known to the
trade in these Islands, both wholesale and retail, and to the consumers
of candy as the rooster or Manoc brand.

“XIII. That on January 12, 1912, the defendant company was organized
as shown by a copy of the Articles of Incorporation hereto attached and
made a part of this complaint, and that two of the directors of said
defendant company are ex-employees of the plaintiff and at the time of
the organization of said corporation, as well as long prior thereto,
were well aware of the use by plaintiff of the said rooster or Manoc as a trade-mark in connection with the manufacture and sale of plaintiff’s candy.

“XIV. That notwithstanding the fact that said directors were well
aware of the use of said trade-mark by plaintiff, and that no other
manufacturer of or dealer in candy in these Islands except the
plaintiff had ever used such mark in connection with the manufacture or
sale of candy, the said defendant corporation through its said
directors, shortly after the organization of the defendant corporation,
began the use of the label Exhibit H which accompanies, in connection
with the manufacture and sale of the various candy products of the
defendant company.

“XV. That on the 5th day of June, 1912, there was filed against the
said two directors of the defendant com- pany, by the prosecuting
attorney of the city of Manila, a complaint of which Exhibit I hereto
attached and made a part of this complaint, is a copy.

“XVI. That the said defendants pleaded not guilty to said complaint,
and after trial thereon before the Hon. A. S. Crossfield, presiding in
Sala I of this court, were acquitted in the manner and form shown by
the court’s decision, a copy of which accompanies this complaint as
Exhibit J.

“XVII. That notwithstanding said criminal prosecution, and
notwithstanding the warning to the defendant company contained in said
judgment, the said corporation defendant has since the rendition of
said judgment continued to sell and dispose of its candy products under
the said label Exhibit H as rooster or Manoc candy and that retail dealers of defendant’s candy are also selling and disposing of said candy as Manoc candy.

“XVIII. That the word Manoc is the generic term for chicken
in all the principal native dialects of these Islands, and that because
of the limited number of descriptive ad- jectives in each of said
dialects, and the limited use of those that do exist, any
representation of a chicken, or chickens, on a label, will naturally
and inevitably become known to all persons who speak and transact
business in any of said dialects as chicken or Manoc brand;
that the great majority of persons who buy, sell or consume candy in
the Philippines speak one or more of such native dialects.

“XIX. That the said defendant corporation, through the use of said
label Exhibit H, in selling its goods, has given and is giving said
goods the general appearance of the goods of this plaintiff in such a
way as is likely to influence purchasers to believe that the goods
offered by defendant are those of the plaintiff, and that such
appearance has so influenced, and is now influencing purchasers.

“XX. That such imitation of plaintiff’s mark has been done by the
defendant for the purpose of deceiving the public and defrauding the
plaintiff of his legitimate trade, and that the public have been and
are being deceived, and this plaintiff has been and is being defrauded
thereby to his great damage.

“Wherefore, plaintiff asks this honorable court that, upon filing and approval of bond herein, it be ordered:

“(a) That a temporary injunction be issued against the
defendant company, its officers, agents, and employees, restraining
them and each of them from any further use of the said label Exhibit H
in the sale or other disposition of candy by defendant, until further
order in this case;

“(b) That after due hearing herein the defendant cor-
poration be directed to render under oath of its proper officer a true
and complete account of profits upon all sales and other dispositions
of its candy products under the said label Exhibit H; and that judgment
be entered in favor of the plaintiff and against defendant for double
the amount thereof;

“(c) That judgment be entered against the defendant
company, its officers, agents, and employees perpetually enjoining them
from using the said label Exhibit H or any other like imitation of
plaintiff’s said mark; and

“(d) That the court grant to plaintiff any other remedy that may be proper under the law, together with the costs herein.

“Manila, July 11, 1912.”

To this complaint the defendant company interposed a general denial
and in due course the case was heard in the Court of First Instance of
Manila, and judgment entered in favor of the defendant. From this
judgment plaintiff appealed,’ and the case is now before us on his bill
of exceptions.

It will be seen that in support of his prayer for relief, plaintiff
relied in part on his allegations of a technical infringement of his
trade-mark, and in part upon his allegations of unfair competition, in
that, as he alleged, the defendant “in selling his goods, has given and
is giving said goods the general appearance of the goods of this
plaintiff in such a way as is likely to influence purchasers to believe
that the goods offered by the defendant are those of the plaintiff,”
and this “for the purpose of deceiving the public and defrauding the
plaintiff of his legitimate trade.”

Counsel for the defendant corporation lay some stress upon their
contention that “the exact nature of the action is impossible to
define; it is either to restrain the alleged infringement of a
trade-mark, or to restrain unfair competition. The complaint of
plaintiff (bill of ex., pp. 2-7) embraces both causes of action,
although they are essentially different and distinct,” and that “the
fact that appellant himself is wholly unable to determine whether his
alleged case is one of infringement or of unfair competition
demonstrates quite conclusively that it is neither.”

We are of opinion, however, that under the terms of Act No. 666, a
prayer for an injunction forbidding the use of a specific emblem or
design and for damages for its use may properly rest upon allegations
of a technical infringement of a trade-mark united in the same
complaint with allegations of unfair competition. Cases may well arise
wherein the conduct complained of constitutes a wrong under either
theory, or wherein the complainant may be satisfied that he can
establish his right to relief under one or the other theory, though he
is in doubt as to which theory will prove acceptable to the court, and
in such cases the plaintiff should not be forced to an election of
either theory in the introduction of evidence in support of the prayer
of his complaint. Under the code system of pleadings in force in this
jurisdiction, plaintiff may set forth in his complaint as many distinct
causes of action aa he may deem proper, the only limitation upon his
right to do so being the provisions of section 90 of the Code of Civil
Procedure, which prescribes that, “if the complaint contains more than
one cause of action, each distinct cause of action must be set forth in
a separate paragraph con- taining all the facts constituting the
particular cause of action.”

The infringement of a
trade-mark is, in truth, a form of unfair competition. The law,
however, allows relief from the wrong done by a trade-mark infringement
under circumstances and upon proof which would not entitle the
plaintiff to relief upon the theory of unfair competition where it does
not appear that there was a technical infringement of a trade-mark.
Plaintiff may be in doubt as to whether he can establish a technical
infringement of a trade-mark to the satisfaction of the court, and in
such a case he may desire to offer additional evidence to support his
contention that, if in the opinion of the court a technical
infringement has not been established, the evidence is sufficient to
sustain a charge of unfair competition, by the use of misleading
emblems or designs upon the goods of the defendant. We know of no
reason why he should not be permitted to do so. (Cf. the recent case of
Hamilton-Brown Shoe Co. vs. Wolf Brothers & Co., 240 U. S., 251.)

We are not unmindful of what was said in the case of Compania General de Tabacos vs.
Alhambra Cigar & Cigarette Manufacturing Co. (33 Phil. Rep., 485).
But what was said there must not be understood as denying the right of
a plaintiff to allege as many distinct causes of action as he may deem
proper in support of his prayer for relief. It was said in the opinion
in that case that a clear distinction must be drawn under our statute
be- tween actions for infringement and actions for unfair competition,
in that under our statute, evidence sufficient to justify relief upon
one or the other theory necessi- tates the grant of relief upon that
theory and precludes the grant of relief under the other; but this does
not mean that the plaintiff, in cases of this kind, may not allege in
support of his prayer for relief facts which he believes will establish
his claim that there has been either an infringement or unfair
competition, and thus secure the relief prayed for, whichever theory
the court is of opinion is sustained by the proof adduced at the trial.

There is no substantial dispute as the various allegations of the
foregoing complaint, except as to plaintiff’s contentions that his
candies have become known to the wholesale and retail trade as Manoc brand candies; that the defendant corporation has sold and continues to sell its candies as Manoc
candy; that in making use of the trade-mark, Exhibit H, the defendant
corporation has given and is giving its goods the general appearance of
the goods of the plain- tiff ; and that in thus imitating the goods of
the plaintiff the purpose and intention of the defendant corporation
has been and is to deceive the public and defraud the plaintiff of his
legitimate trade.

An examination of Exhibits A, B, C, D, E, F, and G, which were made
a part of the above-cited complaint, leaves no room for doubt that the
dominant and striking pictorial feature of each and all of them, except
perhaps of Exhibit A, is a single rooster standing in an attitude of
challenge. Exhibit A is a representation in colors of a rural scene in
the Philippines, with a small circular insert, uncolored, containing
the figure of the rooster as shown in the other exhibits, and the words
“trade-mark” on the lower margin of the circle. The original of this
exhibit was registered by the plaintiff as a trade-mark, but it is not
contended that the defendant has made any improper use of this rural
scene taken as a whole, or of any part of it except the picture of the
rooster which is found in the insert, either as a trade-mark, or for
the purpose of dressing his goods in imitation of those manufactured by
the plaintiff. Plaintiff’s case rests wholly upon his claim that by
long-continued use upon the wrappers and containers in which his goods
are packed, and as a prominent feature of all his advertising matter,
he has lawfully adopted and appropriated as a trade- mark, the
representation of a rooster; and these exhibits, taken together with
the evidence of record conclusively es- tablish this claim, which, in
fact, is not seriously disputed.

Exhibit H is an oval panel which has, in the language of counsel for
the defendant, “as its central and predom- inating feature, two large
and highly colored roosters in an attitude of combat,” with the words
“Manila Candy Co., Ltd.,” the corporate name of the defendant company,
in large and distinct letters running along the upper margin, and along
the lower margin the words, “Trade-mark, Manila.”

Upon the whole record we are of opinion that the evidence of record
does not affirmatively and satisfactorily sustain plaintiff’s claim
that his candy has actually become known to the trade as Manoc candy; nor does it sustain his allegations that the defendant corporation has sold or is selling its candy as Manoc candy, or that its candies are sold in the retail trade under that name.

The question then which presents itself is whether in the absence of
proof of these allegations, the other evidence of record is sufficient
to sustain a finding that there has been either a technical
infringement of plaintiff’s unregistered trade-mark, or unfair
competition by the defendant corporation by the use on the containers
of their goods and otherwise of the design set forth in Exhibit H.

We think that the bare statement of the undisputed facts disclosed
by the record leaves no room for reasonable doubt as to the guilt of
the defendant corporation of unfair competition as defined in Act No.
666.

The plaintiff, a candy manufacturer, had for many years made use of
a pictorial representation of a rooster upon the packages and wrappers
used in connection with his business, and in advertising his goods had
made continuous use of a rooster as his trade-mark. Two of his workmen
left his employ and organized a corporation which engaged in the
business of manufacturing candy. This corporation adopted as its
trade-mark a pictorial representation of two roosters, and it has made
extensive use of this trade-mark upon the packages and containers in
which it put its candy on the market.

No reason has been suggested for the use of this particular design
with its predominant display of two roosters as the trade-mark of the
defendant corporation other than that alleged by the plaintiff; that is
to say, that the new manufacturer, well knowing that the plaintiff had
used a rooster as his trade-mark, hoped to secure an unfair advantage
by misleading the public, and inducing it to believe that its candies
bearing a representation of two roosters were made in the plaintiff’s
factory, which had always marked its goods with one or more pictures of
a single rooster, and at the same time had made extensive use of this
design in connection with its advertising campaigns.

Counsel for defendant insist that there is no real resemblance
between a picture of one rooster and a picture of two roosters; that no
person could or would be deceived by the use by the defendant of a
trade-mark wholly distinct from that of the plaintiff; that the fact
that the defendant used two roosters as its trade-mark clearly
discloses its innocence of any intent to deceive, since a comparison of
the trade-mark of the plaintiff with that of the defendant makes
apparent at once that one was not intended to be an imitation of the
other.

We ask, however, why, with all the birds in the air, and all the
fishes in the sea, and all the animals on the face of the earth to
choose from, the defendant company selected two roosters as its
trade-mark, although its directors and managers must have been well
aware of the long-continued use of a rooster by the plaintiff in
connection with the sale and advertisement of his goods?

There is nothing in the picture of one or more roosters which in
itself is descriptive of the goods sold by the plain- tiff or by the
defendant corporation, or suggestive of the quality of these goods. A
cat, a dog, a carabao, a shark or an eagle stamped upon the container
in which candies are sold would serve as well as a rooster for purposes
of iden- tification as the product of defendant’s factory. Why did
defendant select two roosters as its trade-mark? We cannot doubt that
it was because the plaintiff’s candies had acquired a certain
reputation under the trade-mark of a rooster, and the defendant
corporation hoped to profit unjustly by that reputation. Defendant knew
that the use of a single rooster would be prohibited as a technical
infringement of plaintiff’s trade-mark, but it hoped that it could
avoid that danger by the use of two roosters; and at the same time get
such advantage as it must have believed it could secure from the use of
a design on the containers of its goods, not absolutely identical with
that used by the plaintiff, but so similar in the dominant idea as to
confuse or mislead the purchasers. Children, and for that matter the
average purchasers of candies, might well be expected to recall that
packages con- taining Clark’s candies, which they had been accustomed
to buy and for which they had acquired a taste, had pictures of a
rooster on the outside, and to accept candies made by the defendant
company as candy of the same mark, although the design used displayed
two roosters in each instance instead of the single rooster used by the
plaintiff.

In the language of counsel for defendant the trade-mark used by
defendant on the packages and containers in which it shipped its goods
has, “as its central and predominating feature, two large and highly
colored roosters, in attitude of combat,” and we are satisfied that the
predominant idea conveyed to the mind by the use of that trade-mark is
substantially identical with that conveyed to the mind by the use of
the single rooster by the plaintiff as his trade-mark. The fact that
defendant used two roosters, and that these roosters, unlike the
rooster in plaintiff’s trade-mark, are highly colored, and the further
fact that the words “Manila Candy Co., Ltd.” are used in connection
with de- fendant’s trade-mark, are wholly insufficient to relieve the
design used by the defendant, of the vice of an unfair and misleading
use of the predominant idea set forth in plain- tiff’s unregistered
trade-mark, in such manner as to be likely to cause confusion in the
minds of the ordinary purchasers as to the origin of the goods.

By the terms of section 61 of Act No. 666 unfair competition may be
found to exist where the deceitful appearance of the goods, misleading
as to original ownership, is affected either by the general
appearance of the package containing the goods or by the devices or
words used thereon. We have no doubt the use of the pictorial
representation of two roosters on the containers of the goods of the
defendant rendered the defendant corporation guilty of unfair
competition, for under all the circumstances of the case, we are of
opinion that we are justified in inferring the intent of the defendant
corporation to deceive the public and defraud the plaintiff.

A large number of cases are cited by counsel in their briefs in
support of their respective contentions, and it must be confessed that
it is difficult if not wholly impossible to reconcile the principles
upon which some of those cases seem to turn, though the apparent
conflict would seem to arise in most instances from the application by
the various courts of recognized principles to the varying facts of
each case.

The truth is, as suggested by counsel for the plaintiff, that there
has been a very marked change in the attitude of the public and of the
courts in recent years, in dealing with the offense known as “unfair
competition,” which is reflected in the progress made by the law in
developing rules and remedies relating to dishonest and unfair
commercial practices. Our own statute, Act No, 666, is in itself a
clear recognition of the more modern attitude of the lawmaker with
relation to these practices. Mr. Justice Holmes said twenty-five years
ago that:

“The law has got to be stated over again. And I venture to say that
in fifty years we shall have it in a form of which no one could have
dreamed fifty years ago.” Our statute crystallizing as it does the
modern view as to what the law should be on this subject is a striking
realization of that prophecy.

In 1895 a writer in the Harvard Law Review, vol. 13, p. 265 [vol. 10, p. 275] observed that:

“Unfair competition, as the designation of a legal wrong
which the law will undertake to redress or prevent, has only of late
years begun to make its appearance in the books. To most lawyers, it is
safe to say, the title carries no very definite meaning, for as yet its
use is almost entirely confined to the Reports, and in these it is used
only in the most general way, and always with the facts of the
particular case in view, while it is quite unrecognized in digest, text
book, or dictionary.”

The following extracts from the
introduction to Nim’s work on Unfair Business Competition explain in
some sort the tendency of the courts in recent years to hold to more
rigid account those charged with unfair competition:

“There is a maxim as old as the law that there can be no right without
a remedy, but it is equally true that men are constantly acquiring new
rights and new kinds of property almost unknown to the law, and in
lawful ways are putting themselves in new positions, in which they soon
suffer wrongs which the court seems powerless to prevent or to end. It
seems, sometimes, as if the progress of the unscrupulous merchant and
manufacturer in inventing new schemes for filching away the trade of
others unfairly, has been far more rapid than that of the courts in
finding ways of protecting the honest business man against such
schemes. But whatever has been the activity of these unscrupulous
members of the business community in the last decade, during this time
very marked progress has been made by the law in developing rules and
remedies relating to dishonest and unfair commercial practices.

“It is but few years
since cases involving applications for relief against unfair dealing
were indifferently classed as trade-mark cases or injunction cases, or
hidden away in digests under headings most surprisingly disassociated
from ideas conveyed by the term ‘Unfair Competition.’ Now we find that phrases ‘Passing Off,’ in England, ‘Concurrence Deloyale,’ in France and ‘Unfair Competition‘ in America, are recognized legal terms, embracing rules of law applicable to cases of this character.”

The citation of authority in the briefs would seem to have for its
object the development of a definition, as disclosed by judicial
interpretation, of the illegal acts now generally known in the United
States as “unfair competition,” and also of what is generally
recognized as “technical infringement of a trade-mark.” But for this
purpose we can and should look to our own statute, recently enacted,
which quite clearly defines, delimits, and penalizes these offenses,
and provides for the enforcement of civil remedies for the wrongs
resulting therefrom.

No little difficulty seems to have been encountered by the courts in
determining the degree of similarity between an alleged infringing
trade-mark and the original which should be required in order to
sustain a claim of technical infringement, though it is generally
recognized that exact similitude is not required to constitute an
infringement, or to entitle the complaining party to protection.
Colorable imitation is deemed sufficient, and redress is granted where
the similarity is sufficient to convey a false impression to the public
mind, and is of a character to mislead and deceive the ordinary
purchaser, in the exercise of ordinary care and caution in such
matters. But in cases wherein it could hardly be said that there was
any colorable imitation of the form and arrangement of the original
trade-mark, although the presence of some predominant feature in both
designs was likely to create confusion or uncertainty, the difficulty
in applying the rules touching technical infringements of trade-marks
was notably increased. Some of the courts have gone to greater lengths
than others in holding that in such cases, if the use of such design
was likely to cause confusion as to the origin of the goods, such use
constituted a technical infringement of the original trade-mark. And in
order to furnish a remedy for the manifest wrong involved in such
conduct, some authorities would appear to have unduly expanded the
doctrine as to the right of appropria- tion of emblems, signs or
devices as trade-marks, through a failure to perceive that the remedy
for the wrong is to be found in the application of the modern doctrine
of unfair competition, without the necessity for the straining of
established principles controlling technical infringements of
trade-marks. (Cf. Liggett & Myers Tobacco Co. vs. Finzer, 128 U. S., 184; Bickmore, etc., Co. vs. Karns Mfg. Co., 126 Fed., 573, 574; Popham vs. Cole, 66 N, Y., 69; Munro vs. Tousey, 129 N. Y., 38; Bulte vs.
Igleheart Bros., 137 Fed. Rep., 492, 502, with which contrast the
discussions of “The Owl Case,” No. 3, vol. 8, Bulletin of the U. S.
Trade-Mark Association; “The Teddy Bear Case,” idem; “The Hercules
Wrestling Match Case,” No. 11, vol. 7, idem; “The Star Tea Case,” No.
10, vol. 7, idem; “The Metropolitan Candy Case,” No. 11, vol. 7, idem.)

But it would seem that the recognition of the wrong complained of in
such cases as a technical trade-mark in- fringement involves in many
instances an undue strain upon the well-settled rules and principles
which have long con- trolled this branch of the law—while no difficulty
presents itself in dealing with abuses of this kind under the modern
doctrine of unfair competition. Certainly, under our statute, all
difficulty can and should be avoided, by limiting relief prayed for on
the ground of trade-mark infringement to cases wherein there is an
exact or at least a colorable imitation of the original trade-mark, and
in other cases applying the provisions of section 7 of the statute (Act
No. 666) which defines the offense of unfair competition. That section
expressly provides that unfair com- petition exists when one selling
his goods “gives them the general appearance of goods of another
manufacturer or dealer, either 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,
and who clothes the goods with such appearance for the purpose of
deceiving the public and defrauding another of his legitimate trade,”
and it is further provided that “this section applies in cases where
the deceitful appearance of the goods, misleading as to origin or
ownership, is effected not by means of technical trade-marks, emblems,
signs, or devices, but by the general appearance of the package
containing the goods, or by the devices or words thereon, even though
such packages, de- vices, or words are not by law capable of
appropriation as trade-marks.”

Under the precise terms of this statute, the use under the
conditions therein specified of devices or words, which would be likely
to cause confusion as to the origin of the goods, although they may not
amount to a colorable imita- tion of the form and arrangement of a
trade-mark, constitutes the offense of unfair competition, and there is
no necessity, therefore (in order to give a remedy for the wrong
involved in such conduct), for the straining of the well settled
principles which have long controlled in cases of technical
infringements of trade-marks.

We have already indicated that the use by the defendant company of
the pictorial device of which the predominating idea is twq, roosters
upon the containers or wrappers in which the goods of the defendant are
sold is “likely to in- fluence purchasers to believe that the goods
offered” for sale by the defendant are those of the plaintiff
manufacturer, and that the manifest purpose of the use of this device
is to deceive the public and defraud the plaintiff of his legitimate
trade. It follows therefore that plaintiff is en- titled to the relief
prescribed in the statute, notwithstand- ing the fact that the devices
are dissimilar in so many respects as to preclude a finding that the
device of the defendant is a reproduction or a colorable imitation of
plaintiff’s trade-mark.

The judgment entered in the court below denying relief must,
therefore, be reversed, without costs in this instance, and the record
returned to the court wherein it originated, where judgment will be
entered in conformity herewith granting injunctive relief as
hereinbefore indicated and making proper provision for the accounting
prayed for in the complaint. So ordered.

Torres, Trent, and Araullo, JJ., concur.
Moreland, J., dissents.