Lechon Wars: Supreme Court Issues Verdict in Elar's vs. Elarz Case
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ILLUSTRATOR WARREN ESPEJO
The Supreme Court finally stepped in and issued a verdict in the 20-year-long trademark infringement case between popular lechon retailers Elar's and Elarz.
In a decision dated February 17, 2021 but made public only on Tuesday, June 22, the High Court ruled in favor of respondent Elar's (aka Elarfoods Inc). and ordered Elarz to cease and desist from using the names "Elarz Lechon," "Elar Lechon," "Pig Device," and "On A Bamboo Tray" on any of its products.
The case stems from a petition for review filed by Emzee Foods Inc., the company representing Elarz, to reverse a decision issued by the Court Of Appeals on March 27, 2015. That CA decision, in turn, affirmed the decision of the director-general of the Intellectual Property Office (IPO) declaring Emzee Foods liable for unfair competition and trademark infringement.
“Applying the dominancy test to the case at bar, it is very obvious that the petitioner's marks 'ELARZ LECHON' and 'ELAR LECHON' bear an indubitable likeness with respondent's 'ELARS LECHON,' the SC decision, written by Associate Justice Samuel Gaerlan, read. “As can easily be seen, both marks use the essential and dominant word “ELAR.” The only difference between the petitioner's mark from that of respondent's are the last letters Z and S, respectively. However, the letters Z and S sound similar when pronounced. Thus, both marks are not only visually similar, but are phonetically and aurally similar as well.
“To top it all off, both marks are used in selling lechon products,” it added. “Verily, there exists a high likelihood that the consumers may conclude an association or relation between the products. Likewise, the uncanny resemblance between the marks may even lead purchasers to believe that the petitioner and respondent are the same entity.”
The SC also upheld the CA’s decision awarding P400,000 in exemplary damages to the respondent as well as P500,000 in attorney’s fees and costs of litigation.
The decision finally resolves a decades-long battle between the two of the most well-known purveyors of lechon in the country.
Roots of the case
According to the SC decision, married couple Jose Lontoc and Leonor Rodriguez-Lontoc founded their business selling Filipino food and roasted pigs or lechon and called it Elar's Lechon in 1970. They incorporated the business in 1989 and called the company Elarfoods Inc. It was the Elar's brand that rose to prominence, highlighting its “Elar’s Lechon on a Bamboo Tray” product.
“However, without respondent's knowledge and permission, petitioner sold and distributed roasted pigs using the marks 'ELARZ LECHON,' 'ELAR LECHON,' 'PIG DEVICE' and 'ON A BAMBOO TRAY,' thereby making it appear that petitioner was a branch or franchisee of the respondent,” the decision read.
While the SC decision doesn’t say much else, Emzee Foods-Elarz’s side is detailed in its website’s history page, where it traces the beginnings of the business all the way to 1941 when Jose Lontoc and Leonor Rodriguez first got married. The couple had five children, all girls, who, according to the company, eventually had varying levels of involvement in the family business.
“They are Josephina Lontoc-Portillo, Dolores Lontoc-Santos, Melinda Lontoc- Zalamea, Bubut Lontoc-Ora and Marilen Lontoc-Hidalgo,” the website says. “My mother Melinda Lontoc Zalamea was the first one who got married and had kids. Manjo Lontoc-Zalamea and Manric Lontoc-Zalamea (the first apo's) were born during the 60’s.”
Elarz’s history page goes on to claim that the business was divided between operations, which was handled by the Zalameas (Melinda, Manjo, and Manric), and the catering business, which was under Portillo and Santos. The two other sisters, Ora and Hidalgo, chose to migrate to the US and did not get involved in the business.
“Leonor Rodriguez passed away (in) 1997, followed by Jose Lontoc and Melinda Zalamea (in) the year 2000,” the website says. “Soon after, Josie Lontoc-Portillo and Dolores Santos took it upon themselves that they are the rightful owners of all assets of the Lontoc family. The Zalamea family only wanted to get their rightful share and start their own but they were denied by the Josie Lontoc Portillo faction. ELAR Z was born when we decided not to pursue the unhealthy and ‘almost bloody’ estate war. We just wanted to continue the legacy of my grandparents of being the top lechon brand in the Philippines during that time.”
On September 25, 2001, Elarfoods, which was the original company run by Portillo and Santos, filed a trademark application for “Elars Lechon,” which was followed by applications for “On a Bamboo Tray,” and “Roasted Pig Device” filed on October 1, 2001.
A day later, on October 2, Elarfoods sent a cease-and-desist letter to Emzee Foods, which was the company behind Elarz, asking it to stop using the Elars name or any of its variations.
“However, petitioner ignored the demand and continued selling its roasted pigs under the marks ‘ELARZ LECHON,’ ‘ELAR LECHON,’ ‘PIG DEVICE,’ and ‘ON A BAMBOO TRAY,’ thereby causing confusion as to the source and origin of the products.”
That letter was followed by three more complaints against Emzee Foods for unfair competition and violation of intellectual property rights, which was eventually consolidated into a single complaint.
Court cases
On August 8, 2005, the IPO’s Bureau of Legal Affairs dismissed the complaint and ruled that it was the Lontocs themselves who owned the IP marks and that “the use of the ‘ELAR’ mark was not coined by the spouses Lontoc for the sole benefit of Elarfoods, but for the use of the Lontoc-Rodriguez clan in their businesses.”
Elarfoods filed an appeal with the office of the director-general, who reversed the ruling of the BLA and decided in favor of Elarfoods. The director-general said that it was the Lontocs themselves who founded the business and incorporated and registered the company (Elarfoods) with the SEC, and in, doing so, "left it with all the rights and interests, including the subject trademarks."
“Even (Emzee Fods) admitted that (Elarfoods) is an alter ego of the spouses Lontoc, implying that the rights and interests of (Elarfoods) are identical and inseparable from those of the spouses Lontoc,” the decision read.
Emzee Foods then filed a Petition for Review with the CA, which, on March 27, 2015, affirmed the ruling of the IPO director-general. The company behind Elarz filed a motion for reconsideration, which the CA denied on September 11, 2015. That then led to the Petition for Review with the SC, which we now know did not end in Emzee Foods’ favor.
Elarz, which has since branched out and now offers canned and frozen lechon, has yet to issue a statement about the decision.
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