SOCIETE DES PRODUITS, NESTLE vs. PUREGOLD
SOCIETE DES PRODUITS, NESTLE, S.A., vs. PUREGOLD PRICE CLUB, INC.,
September 6, 2017
DOCTRINE:
The authority of the representative of a corporation to sign the certification against forum shopping originates from the board of directors through either a board of directors’ resolution or secretary’s certificate which must be submitted together with the certification against forum shopping.
FACTS:
Puregold filed an application for trademark “COFFEE MATCH” with Intellectual Property Office (IPO). Nestle oppossed on the ground that it has already registered the mark “coffee-mate”. Nestle alleged that it is the exclusive owner of the “COFFEE-MATE” trademark and that there is confusing similarity between the “COFFEE-MATE” trademark and puregold’s “COFFEE MATCH” trademark. Furthermore, it alleged that “COFFEE-MATE” has been declared an internationally well-known mark and puregold’s use of “COFFEE MATCH” would indicate a connection with the goods covered in nestle’s “COFFEE-MATE” mark because of its distinct similarity. Nestle claimed that it would suffer damages if the application were granted since Puregold’s “coffee match” would likely mislead the public that the mark originated from nestle.
IPO dismissed the opposition of Nestle on the ground that the certification of non-forum shopping was not supported by board resolution. Further, that the marks are different and not confusing. It ruled that Nestle’s opposition was defective because the verification and certification against forum shopping attached to Nestle’s opposition did not include a board of directors’ resolution or secretary’s certificate stating Mr. Dennis Jose R. Barot’s (Barot) authority to act on behalf of nestle.
Nestle explained that the authority of Barot to sign the certification was based on an SPA executed by Celine George.
The CA affirmed that decision of the IPO. It ruled that there is no board resolution and/or secretary’s certificate to prove the authority of Dennis Jose R. Barot to file the petition and to sign the Verification/Certification of Non-Forum Shopping on behalf of petitioner-corporation;
ISSUE:
Whether or not the CA erred in dismissing the petition based on lack of certificate of non-forum shopping.
HELD:
NO. Nestle failed to properly execute a certification against forum shopping as required by Section 5, Rule 7 of the Rules of Court. Section 5, Rule 7 of the Rules of Court provides:
Section 5. Certification against forum shopping. -The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) ifhe should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (Emphasis supplied)
Juridical persons, including corporations, that cannot personally sign the certification against forum shopping, must act through an authorized representative. The exercise of corporate powers including the power to sue is lodged with the board of directors which acts as a body representing the stockholders. For corporations, the authorized representative to sign the certification against forum shopping must be selected or authorized collectively by the board of directors.
The authority of the representative of a corporation to sign the certification against forum shopping originates from the board of directors through either a board of directors’ resolution or secretary’s certificate which must be submitted together with the certification against forum shopping.
The SPA is not sufficient because it was not accompanied by a Board Resolution or Secretary’s Certificate from Nestle showing that Celine Jorge was authorized by the board of directors of Nestle to execute the power of attorney in favor of Barot.
Nestle, itself, acknowledged in this petition the absence of a board resolution or secretary’s certificate issued by the board of directors of Nestle to prove the authority of Barot to sign the certification against forum shopping on behalf of Nestle, to wit: “[t]hus, while there is no board resolution and/or secretary’s certificate to prove the authority of Dennis Jose R. Barot to file the petition and Verification/Certification of NonForum Shopping on behalf of petitioner-corporation, there is a Power of Attorney evidencing such authority.”42 The power of attorney submitted by Nestle in favor of Barot was signed by Celine Jorge. However, the authority of Celine Jorge to sign the power of attorney on behalf of Nestle, allowing Barot to represent Nestle, was not accompanied by a board resolution or secretary’s certificate from Nestle showing that Celine Jorge was authorized by the board of directors of Nestle to execute the power of attorney in favor of Barot. In Development Bank of the Philippines v. Court of Appeals,43 this Court held that the failure to attach a copy of a board resolution proving the authority of the representative to sign the certification against forum shopping was fatal to its petition and was sufficient ground to dismiss since the courts are not expected to take judicial notice of board resolutions or secretary’s certificates issued by corporations, to wit:
What petitioners failed to explain, however, is their failure to attach a certified true copy of Resolution No. 0912 to their petition for certiorari in CA-G.R. SP No. 60838. Their omission is fatal to their case. Courts are not, after all, expected to take judicial notice of corporate board resolutions or a corporate officer’s authority to represent a corporation. To be sure, petitioners’ failure to submit proof that Atty. Demecillo has been authorized by the DBP to file the petition is a “sufficient ground for the dismissal thereof.”44 (Emphasis supplied)
Accordingly, the CA did not err in ruling that the petition for review should be dismissed due to the failure of Nestle to comply with the proper execution of the certification against forum shopping required by Section 5, Rule 7 of the Rules of Court.
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