THE Manila City Prosecutor’s Office has junked the criminal complaint by TouchPay brand-owner Manila Express Payment Systems (Meps) Inc. for alleged utility-model infringement and unfair competition filed against officers of two online payment and processing firms.
In a 10-page resolution, Assistant City Prosecutor Robert G. Indunan held that the complaint was prematurely filed against the officers of BTI Payments Philippines and Electronic Transfer Advance Processing Inc. (eTAP).
Indunan noted that under Section 76 (Civil Action for Infringement) of Republic Act (RA) 8293, a criminal action for infringement can only be lodged if an infringement is repeated by the infringer or by anyone in connivance with him after the finality of the judgment of the court against the infringer.
Section 76 of RA 8293 (An Act of Prescribing the Intellectual Property Code of the Philippines and Establishing the Intellectual Property Office) provides for civil action for infringement.
“In this case, the instant criminal action for infringement was lodged for the first time sans any final court judgment for infringement against herein respondents,” the resolution read.
“Thus, the instant criminal complaint is deemed to have been prematurely filed, for which herein respondents cannot as yet be indicted for infringement of a utility model,” it added.
With regard to the unlawful competition charges, MEPS accused the respondents of “palming off”—misrepresenting someone else’s goods or services as one’s own in business—or passing by eTAP’s “Pay&Go” automated payment terminal (APT) as MEPS’ TouchPay automated payment machine (APM).
However, the prosecutor held that the evidence presented by the complainant were not sufficient to warrant the filing of unfair competition against the accused before the trial court.
It noted that the physical appearance of eTAP’s Pay&Go APT is different from MEPS’s TouchPay APM.
“The complaints sent via email anent ETAp’s Pay&Go APT and MEPS’ TouchPay have not clearly shown that the end consumers were misled or deceived as to the machines that they were using,” the resolution said.
Indunan further held that the subject of the complaint is the items seized by the National Bureau of Investigation-Intellectual Property Rights Division (NBI-IRPD) resulting from search warrants.
However, the officers of the NBI-IRPD failed to execute affidavits to confirm the items confiscated, the resolution read. It added the officers also failed to show that the confiscated machines, when operated, exhibited an imitation of the utility-model flow similar to that of MEPS’s.
“Verily, the evidence adduced is insufficient to indict herein respondents for unfair competition,” the resolution stated.
The complainant has alleged that there was a confusing similarity in the general appearance of the BTI, eTAP and TouchPay machines. The complainant also alleged there was intent to deceive the public and competitors.
This resulted to the issuance of a search warrant executed by the NBI-IPRD whose members confiscated two BTI machines from Manila in July last year.