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AC Enterprises, Inc. vs. Frabelle Properties Corp.

G.R. No. 166744. November 2, 2006.

SCRA Citation: 506 SCRA 625

DOCTRINE: Private and public nuisance; definition The term nuisance is so comprehensive
that it has been applied to almost all ways which have interfered with the rights of the citizens, either
in person, property, the enjoyment of property, or his comfort; A private nuisance is one which violates
only private rights and produces damage to but one or a few persons while a nuisance is public when it
interferes with the exercise of public right by directly encroaching on public property or by causing a
common injury, an unreasonable interference with the right common to the general public. In this
case, the noise generated by an airconditioning system is considered a private nuisance.
Noise emanating from air-con units not nuisance per se Noise becomes actionable only when
it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the
maker to the needs of the listener; Injury to a particular person in a peculiar position or of especially
sensitive characteristics will not render the noise an actionable nuisance. Whether or not the noise is a
nuisance is an issue to be resolved by the courts.
Test to determine noise as a nuisance The test is whether rights of property, of health or of
comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss [i.e.
Actual Physical Discomfort]which goes beyond the reasonable limit imposed upon him by the
condition of living, or of holding property, in a particular locality in fact devoted to uses which involve
the emission of noise although ordinary care is taken to confine it within reasonable bounds; or in the
vicinity of property of another owner who, though creating a noise, is acting with reasonable regard for
the rights of those affected by it.
Action to abate private nuisance; incapable of pecuniary estiation an action to abate private
nuisance, even wehere the plaintiff asks for damages is one incapable of pecuniary estimation
FACTS: AC enterprises (Petitioner) is a corporation owns a 10-storey building in Makati City. Frabelle
(Respondent) is a condominium corporation who's condominium development is located behind
petitioner. Respondent complained of the 'unbearable noise emanating from the blower of the airconditioning units of petitioner.
(1) Is it a nuisance as to be resolved only by the courts in the due course of proceedings or a
nuisance per se?
(2) Is an action for abatement of a private nuisance, more specifically noise generated by the blower of
an air-conditioning system, even if the plaintiff prays for damages, one incapable of pecuniary
(3) What is the determining factor when noise alone is the cause of complaint?
(1) It is a nuisance to be resolved only by the courts in the due course of proceedings; the noise is not
a nuisance per se. Noise becomes actionable only whenn it passes the limits of reasonable adjustment
to the conditions of the locality and of the needs of the maker to the needs of the listener. Injury to a
particular person in a peculiar position or of especially sensitive characteristics will not render the
house an actionable nuisance in the conditions, of present living, noise seems inseparable from the
conduct of many necessary occupations.
(2) Yes, the action is one incapable of pecuniary estimation because the basic issue is something other
than the right to recover a sum of money.

(3) The determining factor is not its intensity or volume; it is that the noise is of such character as to
produce actual physical discomfort and annoyance to a person of ordinary sensibilities rendering
adjacent property less comfortable and valuable.

McDonald's Corporation and McGeorge Food Industries,

Inc. vs. L.C. Big Mak Burger, Inc., Francis B. Dy, Edna A. Dy,
Rene B. Dy, William B. Dy, Jesus Aycardo, Araceli Aycardo,
and Grace Huerto (G.R. No. 143993, August 18, 2004, 480
Phil. 402)
Petitioner, McDonalds Corporation (McDonalds) is a corporation organized under the laws of Delaware,
US. It operates, by itself or through its franchisees, a global chain of fast food restaurants. It owns a family
of marks including the Big Mac mark for its double decker hamburger sandwich. McDonalds registered
his trademark with the US trademark registry sometime 1979. Based on home registration, McDonalds
applied for registration of the same mark in principal registry of the then Philippine Bureau of Patents,
Trademark and Technology (PBPTT), now the Intellectual Property Office (IPO). Pending approval of this
application, McDonalds introduced its Big Mac hamburger sandwiches in the Philippine market in 1981.
On 1985, the PBPTT, allowed registration of the Big Mac mark in the Philippine registry based on its
home registration in the US.
Like its other marks, McDonalds display the Big Mac mark in its item and paraphernalia in its restaurant,
and its outdoor and indoor signages. From 1982 to 1990, McDonalds spent millions in advertisement for
big mac hamburger sandwich alone.
Petitioner McGeorge Food Industries (Petitioner McGeorge) a domestic corporation, is McDonalds
Philippine franchisee.
Respondent, LC Big Mak burger inc. is a domestic corporation which operates fast food outlets and snack
vans in metro manila and nearby provinces. Respondents corporations menu includes hamburger
sandwiches and other food items. Respondent Francis B. Dy, Edna A. Dy, Rene B. Dy, William B. Dy,
Jesus Aycardo, Araceli Aycardo, and Grace Huero are the incoporators, stockholders and directors of
respondent corporation.
On 1988, respondent corporation applied with the PBPTT for the registration of the Big Mak mark for its
hamburger sandwiches. McDonalds opposed respondent corporations application on the ground that Big
Mak was colorable imitation of its registered Big Mac mark for the same food products. McDonalds also
informed respondent Francis Dy, the chairman of the board of directors of the respondent corporation, of
its exclusive right to the Big Mac mark and requested him to desist from using the Big Mak mark or any
similar mark.
Having received no reply from respondent Dy, petitioners sued respondents in the RTC Makati for
trademark infringement and unfair competition. RTC issued a temporary restraining order against
respondents enjoinining them from using the Big Mak mark in the operation of their business in the NCR.

On 1990, RTC issued a writ of preliminary injunction replacing the TRO.

In their answer, respondents admitted that they have been using the Big Mak burger for their fast food
business. Respondents claimed, however, that McDonalds does not have an exclusive right to the Big
Mac mark or to any other similar marks. Respondents point out that the Isaiyas group of corporations
registered the same mark for hamburger sandwiches with the PBOTT on 1979. One Rodolfo Topacio
similarly registered the same mark on 1983, prior to McDonalds registration on 1985. Alternatively,
respondents claimed that they are not liable for trademark infringement and unfair competition, as the Big
Mak mark they sought to register does not constitute a colorable imitation of the Big Mac mark.
Respondents asserted that they did not fraudulently pass off their hamburger sandwiches as those of
petitioners Big Mak hamburgers. Respondents sought damages in their counterclaim.
In their reply, petitioners denied respondents claim that McDonalds is not the exclusive owner of the Big
Mac mark. Petitioners asserted that while the Isaiyas group and Topacio did register the Big Mac mark
ahead of them, the Isaiyas group did so only in the supplemental register of PBPTT and such registration
does not provide any protection. McDonalds disclosed that it had acquired Topacios rights to his
registration in a deed of assignment.
Did the same acts of defendants in using the name Big Mak as a trademark or trade name in their
signages, or in causing the name Big Mak to be printed on the wrappers and containers of their food
products also constitute an act of unfair competition under section 29 of the trademark law?
Yes. The provision of the law concerning unfair competition is broader and more inclusive than that the
law concerning the infringement of trademark, which is more limited range, but within its narrower range
recognizes a more exclusive right derived by the adoption and registration of the trademark by the person
whose goods or services are first associated therewith. Notwithstanding the distinction between an action
for trademark infringement and an action for unfair competition, however, the law extends substantially
the same relief to the injured party for both cases.
Any conduct may be said to constitute unfair competition if the effect is to pass off on the public
the goods of one man as the goods of another. The choice of Big Mak as trade name by defendant
corporation is not merely for sentimental reasons but was clearly made to take advantage of the
reputation, popularity and the established goodwill of plaintiff McDonalds. For as stated in Section 29, a
person is guilty of unfair competition who in selling his goods shall give them the general
appearance, of goods of another manufacturer or dealer, either as goods themselves or in the
wrapping of the packages in which they are contained, or the devices or words thereon, or in any
other feature of their appearance, which would likely influence purchasers to believe that the
goods offered are those of a manufacturer or dealer other than the actual manufacturer or
dealer. Thus, plaintiffs have established their valid cause of action against the defendants for trademark
infringement and unfair competition and for damages.