JOSE L. UY, PLAINTIFF AND APPELLANT, VS. ANASTASIO SANTOS, DEFENDANT AND APPELLEE.

This is an appeal taken by the plaintiff
Jose L. Uy from the judgment of the Court of First Instance of Manila,
the dispositive part of which reads as follows:

“Wherefore, judgment is hereby rendered
perpetually enjoining the defendant, his attorneys, and agents from the
use of the trade-mark in question on the products manufactured by his
distillery ‘La Suerte’, with the costs against the said defendant.

“The plaintiff is absolved from the counterclaim.”

In support of his appeal the appellant assigns three alleged errors
as committed by the trial court, which will be discussed in the course
of this decision.

There is no question that the defendant Anastasio Santos violated
section 3 of Act No. 666 which protects the exclusive use of
trade-marks and provides for an indemnity for damages against the
violators thereof.

The only question to decide in this appeal is whether or not the
plaintiff-appellant is entitled to an indemnity for damages by reason
of such violation.

The said plaintiff, testifying in hi? own behalf, stated that he
discovered that the defendant had been illegally using his trade-mark
Exhibit B since the year 1929, but that he did not institute any
judicial proceeding against the said defendant by reason of the
latter’s request to be permitted to use the labels bearing said
trade-mark, which said defendant then had in stock and which were very
few, until they were exhausted, promising that henceforth their use
would be discontinued. Therefore it is clear that the plaintiff
consented to the continued use by the defendant of the remaining labels
bearing the said plaintiff’s trade-marks. If this is true, then the
plaintiff cannot seek indemnity for damages from an alleged illegal use
of his trade-mark, to which he himself had consented, unless after
having given his consent thereto he enjoined the defendant from the use
thereof. The record does not show the existence of any such prohibition
by the plaintiff until the filing of this complaint.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto with the costs against the appellant. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.