FACTS:- Petitioner Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc. filed

a Petition for Cancellation seeking the cancellation of Certificate of Registration of the service mark “BLUE CROSS” for distribution of hospital care on pre-payment financing basis issued in the name of respondents-appellee Blue Cross and Blue Shield Association.

- In their petition for cancellation, herein petitioner-appellants alleged that: on July 21, 1986 Blue Cross Insurance, Inc. was registered as a business name with the Bureau of Domestic Trade, Department of Trade and Industry (DTI); that its certificate of registration of business name was renewed on August 22, 1991; that as early as June 25, 1986 Blue Cross Insurance, Inc. had adopted and commercially used the mark “Blue Cross” as part of its corporate name/trade name; that to address the public demand for health care maintenance services, the incorporators of Blue Cross Insurance, Inc. formed Blue Cross Health Care, Inc. which was registered with the Securities and Exchange Commission (SEC) on July 22, 1987 and registered as a business name with the DTI on August 25, 1987; that Blue Cross Health Care, Inc. continued to commercially use the mark “BLUE CROSS” as part of its corporate name/trade name since its registration with the DTI on July 22, 1987 up to the present; that by virtue of their prior adoption and commercial use of the mark “BLUE CROSS”, Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc. had the exclusive title to, and interest in the said service mark or trade name.

- respondent-appellee Blue Cross and Blue Shield Association raised, by way of affirmative and/or special defenses that: its predecessor-in-interest, the American Hospital Association, was already the owner of the mark “Blue Cross” which was registered in the Philippines on August 27, 1959 under Certificate of Registration No. 7619; that on February 5, 1952 the respondent-appellee obtained United States patent and Trademark Office service mark registration number 554,488 for the mark BLUE CROSS which registration was valid for 20 years or until February 5, 1972; that registration number 554,488 was renewed for another 10 years or until February 5, 1992; that on July 22, 1986 it was granted a new Certificate of Registration No. 35780 by the Patents Office for the said service mark; that during the fifty (50) years that it has been used, the service mark “BLUE CROSS” has achieved goodwill, fame and favorable reputation worldwide; that the use by Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc. of the said service mark was without the consent and authorization of the respondent-appellee; and that on March 26, 1992 it had filed a Petition with the SEC for the cancellation of the service name “BLUE CROSS” from the corporate name of Blue Cross Insurance, Inc. and Blue Cross Health Care, Inc.

- On 28 December 2007, Hon. Estrellita B. Abelardo, the Director of the Bureau of Legal Affairs, IPO, rendered the assailed Decision denying the petitioner-appellant’s petition for cancellation.

- The Director held that the validity of Certificate of Registration No. 35780 which was issued on July 22, 1985 enjoys the presumption of validity.

- The IPO ruled that while Certificate of Registration No. 7619 (which was registered in the Philippines on August 27, 1959) had lapsed on August 27, 1979, the respondent- appellee’s continued use of the mark “BLUE CROSS” preserved its trademark rights.

- Finally, that the respondent-appellee’s use of the mark “BLUE CROSS” precedes that of herein petitioner-appellants, and that the respondent-

appellee’s trademarks rights were acquired by it even previous to petitioner-appellants’ use of it from 1987 and years thereafter.

- Thus, this appeal is filed.

ISSUES:- The petitioner-appellants argue that dismissing the appeal on a mere

technicality without considering the merits of the case is grave abuse of discretion; that the presumption of the validity of registration and ownership of the mark “BLUE CROSS” was debunked by the numerous evidence presented by the petitioner-appellants.

- They underscore that the requirement of use is the foremost element, aside from registration, that should have been considered as regards the validity of registration and ownership of the said mark

HELD: The petition is not impressed with merit. PETITION DISMISSED.

RATIO:- Section 2 of the Uniform Rules on Appeal states that:

- Section 2. Appeal to the Director General. — The decisions or final orders of the Bureau Director shall become final and executory thirty (30) days after receipt of a copy thereof by the parties unless, within the same period, a motion for reconsideration is filed with the Bureau Director or an appeal to the Director General has been perfected; Provided, that only one (1) motion for reconsideration of the decision or order of the Bureau Director shall be allowed; and, in case the motion for reconsideration is denied, the appellant or appellants has/have the balance of the period prescribed above within which to file the appeal. (Emphasis supplied)

- When the petitioner-appellants received a copy of the Decision dated 28 December 2007 on 18 January 2008, they had until 17 February 2008 within which to file a motion for reconsideration. Since 17 February 2008 fell on a Sunday, the appeal should be filed on the ensuing working day, that is, 18 February 2008. A total of thirty (30) complete days have been consumed.

- Thus, as correctly ruled by the IPO Director General, when the petitioner-appellants received on 16 April 2009 the resolution denying their motion for reconsideration, they only had one (1) day or until 17 April 2009 within which to file their appeal memorandum.

- Consequently, their appeal memorandum which was filed on 18 May 2009 is far in excess of the 30-day period for perfecting an appeal.

- The IPO Director General correctly dismissed the appeal outright as it was not filed within the prescribed period.

- The petitioner-appellants underscore the need for actual use of the subject service mark as a prerequisite, aside from registration, to the acquisition of the right of ownership over it.

- Against the evidence presented by the petitioners-appellants, the respondent-appellee, aside from being a prior registrant, in fact presented satisfactory proof of actual commercial use.

- we adopt the findings and conclusion of Hon. Estrellita Beltran-Abelardo, ratiocinated in this wise: “the registrant enjoys in its favor the presumption of validity of registration and ownership over the mark “Blue Cross”.

- Section 20 provides: 'Section 20. Certificate of registration prima facie evidence of validity. - A certificate of registration of a mark or trade-name shall be prima facie evidence of the validity of the registration, the

registrant's ownership of the mark or tradename, and of the registrant's exclusive right to use the same in connection with the goods, business or services specified in the certificate, subject to any conditions and limitations stated therein.'

- In addition to this, petitioner's own evidence reveal that prior to July 22, 1985, “Blue Cross” was already registered in the name of American Hospital Association (Respondent- registrant's predecessor-in-interest) under Certificate of Registration No. 7916 issued in August 27, 1959 for distribution of hospital case on a pre-payment financing basis.

- This fact was contained in a certification by the Bureau of Patents Trademarks and Technology Transfer Bureau, (BPTTT) dated 27 May 1992. (Exhibit “H”).

- In this regard, the rights of an owner of a mark is maintained even if it fails to renew registration and will not be prejudiced on account of one who attempts to register a mark that does not belong to that person. The law provides:

- 'Section 16. Effect of Failure to Renew registration. Mere failure to renew any registration shall not affect the right of the registrant to apply for and obtain a new registration under the provisions of this Act, nor such failure entitle any other person to register a mark or trade-name unless he is entitled thereto in accordance with the provisions of this Act.'

- Preceding therefrom, even if the respondent-registrant earlier registration of the Blue Cross mark lapsed after August 27, 1979, its continuous use preserves its trademark rights which have been earlier acquired.

- Moreover, respondent-registrant's use of the mark “Blue Cross” precedes that of the petitioner.

- Respondent-registrant also offered evidence of the registrations it secured for its marks BLUE CROSS in countries all over the world.

- Applying the law, this Bureau finds that respondent- registrant has shown its actual adoption, use and ownership of the Blue Cross mark not only through registration, but through the availability and usage of its card for medical insurance in the Philippines. The use in commerce since 1966 proves that it is the owner of the BLUE CROSS mark and is entitled to secure registration for the same on the basis of the aforequoted provisions of Sec. 2 and Sec. 2-A of the old Trademark law.

- Inspite of the fact that petitioner was able to show continuous use of the mark from 1987 and years thereafter, this cannot defeat respondent-resgistrant's trademarks rights already acquired previous to this period. Therefore, its petition must necessarily fail.