DE GUIA, PATRIXIA JOY M.

2018020747

1.A In the contract of carriage it is presumed that the common carrier is at fault when a
passenger dies or injured and may be overcome only by proof of extraordinary diligence.

1.B Duty to exercise extraordinary diligence in transporting passengers without encountering any
harm or loss is required for common carriers like Yatco. Under Article 1755 of the New Civil Code,
a common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

2.A Yang is not correct in saying that her designation as beneficiary is irrevocable.

The Insurance Code provides that the insured shall have the right to change the beneficiary he
designated in the policy, unless he has expressly waived this right in said policy. Notwithstanding
the foregoing, in the event the insured does not change the beneficiary during his lifetime, the
designation shall be deemed irrevocable. In the case Yin changed his beneficiary to Vinsel is valid
being his illegitimate child but the designation of Vessel is contrary to law.

2.B Vinsel has insurable interest being the son of Yin but Vessel has no insurable interest in the
life of Yun since her relationship with Yin bars her from being entitled to the proceeds. Vinsel has
an insurable interest on the life of Yin because Sec. 10 of the ICP provides that every person has
an insurable interest in the life and health: (a) of himself, of his spouse and of his children. As for
Vessel, she does not have an insurable interest on the life of Yin because the Civil Code of the
Philippines provides those forbidden from receiving any donation cannot be named beneficiaries
of a life insurance policy by the person who cannot make any donation to him or her. People who
have committed adultery or concubinage are some of those on the list prohibited to make
donations to each other. Thus, an insured married person cannot name his or her illicit lover as a
beneficiary in his or her insurance policy. 

3.A NO. Facts concealed must be material for the insurer to have the right to rescind the contract
of insurance. Yate being previously diagnosed with breast cancer is immaterial because at the
time of execution of contract she is already a cancer survivor.

3.B YES. The law provides that insurer is liable in cases of suicide of the insured if it was
committed in the state of insanity. In the case it was committed when she was diagnosed with
psychotic tendency which graduated into extreme despondency hence her beneficiaries are
entitled to the proceed of life insurance.

4. The action for copyright infringement should be dismissed. KK did not infringe any right of XX,
as the publisher, protected under the Intellectual Property Code. Under the First Sale Doctrine,
the owner of a particular copy lawfully made is entitled, without the authority of the copyright
owner, to sell or otherwise dispose of the possession of that copy. Hence, the importation and
resale of the copies of foreign books ordered by KK in Bangkok was allowed without XX’s further
permission.

5.A Under the law on copyright and trade names provide that prior registration is not required
before an infringement suit may be filed. The only difference is that it is only under the law on
copyright that moral rights are expressly recognized and accorded to the creator

5.B Aling Yasmien can seek injunctive relief against Aling Yoling from using the brand name “
Ysmaellas “ because of the doctrine of prior use. It is ownership of the trademark that confers
the right to register. Registration does not confer ownership. Since Aling Yasmin was the first one
to use the brand or trade name in commerce, then she is considered the owner thereof.

5.C Aling Yoling cannot seek the cancellation of Aling Yasmin’s trademark registration of the
brand name “ Ysmaellas” on the ground of well-known brand because the wellknown mark rule
only applies to a mark which is well-known internationally and in the Philippines.

6.A Yosha’s invention is still patentable despite the fact he had sold several models to the public
before the formal application for registration of the patent was filed with the IPO. It is true that
an invention shall not be considered new if it forms part of a prior art and that prior art shall
consist of everything which has been made available to the public anywhere in the world, before
the filing date or the priority date of the application claiming the invention. This, however,
presupposes that the one who has made available the patentable invention to the public is a
person other than the applicant for patent.

6.B Yosha can no longer prevent anyone who has possession of the earlier models from using
them even if Yosha is able to properly register the patent with the IPO. One of the limitations of
patent rights is the use of the patented product which has been put on the market in the
Philippines by the owner of the product insofar as such use is performed after the product has
been so put on the said market

7.A YES. Motion for reconsideration may be filed by mail or personal delivery. Under electornic
commerce act of 200 electronic document does not include a facsimile transmission. In this case
the contention of Yvan is untenable.

7.B The court may order a person to disclose if there is a probable cause that any of the deposit
in bank is related to unlawful activity under AMLA. In this case, the unreasonable increase in the
bak of Yvam when he was employed by PAGCOR.

8.A YES!

As a general rule foreign currency deposits are absolutely confidential but as an exception from
the general rule that foreign currencies are absolutely confidential, AMLC with the written
consent of the depositor can examine the accounts of YB.

8.B NO!

AMLC does not have power to order a banking institution to reveal matters relating to bank
accounts. AMLC can only be allowed to reveal if it is in relation to unlawful matters or an act of
money laundering and it must be shown that there is a probable cause in order to require inquiry
to bank accounts.

9. An all risk insurance policy covers all causes of conceivable loss or damage, except as
otherwise excluded in the policy or due to fraud or intentional misconduct on the part of the
insured. Since there was no stipulation as to what losses are excluded from the coverage, the
insured can recover.

10.A An insurable interest is that interest which a person is deemed to have in the subject matter
insured, where he has a relation or connection with or concern in it, such that the person will
derive pecuniary benefit or advantage from the preservation of the subject matter insured and
will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening
of the event insured against.
10.B sEAN and Seth has seprate insurable interest since they have different interest in the cas.
Seth as the owner is with regard to the preservation to the extent of the whole value of the car
and in the case of Sean as the borrower, is for the purpose of using the case only and the
expected damages.

11. The justification of Dennis is not warranted. Under Section 10 of the Trust Receipts Law, loss
of goods which are the subject of a trust receipt, pending their disposition, irrespective of
whether or not it was due to the fault or negligence of the entrustee, shall not extinguish his
obligation to the enruster for the value thereof. Here, the defense of Dennis that the loss is due
to force majeure may not be set up in a trust receipts transaction since the entrustee is liable for
the loss, whether or not he was at fault or negligent.

12.A Restrictions are as follows:

a. Transaction is approved by at least majority of the board excluding the director

concerned
b. The required approval shall be entered upon records of bank and copy of entries shall be
submitted to BSP
c. unless the Loan is non-risk it must no exceed the book valu of the paid shares of the
borrowing DOSRI and amount of encumbered deposits.

12.B The opposition of BG based on conlifct of interest and violation of restrictions on DOSRI
transactions are not correct. “Related interest” under DOSRI are only extended to the spouse of
any Director, Officer, or Stockholder, their ascendants and descendants up to the first degree of
affinity and consanguinity. Brothers are second degree relatives hence they cannot be considred
as DOSRI accounts.

13. The fair use of a copyrighted work for teaching and similar purposes is not an infringement of
a copyright. In determining whether the use made of a work in any particular case is fair use, the
factors to be considered shall include: the purpose and character of the use; the nature of the
copyrighted work; the amount and substantiality of the portion used; and the effect of the use
upon the potential market for or the value of the copyrighted work. Here, Pascuala met the
requirements for the fair use of Virtuco’s songs. The purpose of copying is for his class to listen
to the musical works of Virtucio and that he did not reproduce it for any other purpose.

14. On the ground of public interest, Department of Health may file a petition for compulsory
license with the Director of Legal Affairs of IP Office to exploit the patented medicine even
without the agreement of the patent owner and once granted it may sell the medicine for AIDS
for a lower price subject to payment of royalties to Super Biology.

15. Flora cannot be prosecuted for money laundering since money laundering is a crime where
the proceeds of unlawful activities are transacted thereby making it appear that they originated
from legitimate sources, in the case the theft committed by Flora is not qualified as it was not
committed with grave abuse of discretion. In committing money laundering, only qualified theft is
considered as an unlawful activity.

16. The refusal of Prosperous Bank is not justified. AMLC may inquire or examine deposit or
investments with any bank and non-bank financial institutins if they found probable cause that
deposits therein are related to unlawful activities under the Anti Money Laundering law. Order
from the court is not necessary since the crime is in violation of Dangerous Drugs Law.
17. In the case of Aurelio WTC is liable being a common carrier it is presumed that it is their fault
in cases of accident unless they proved that they exercise extraordinary diligence. In the case of
Jerom, if there is a stipulation limiting the liability of common carries, such as in his case he is
carried gratituosly, it is valid however such is not applicable if there is gross negligence and WTC
may be held liable. As to Florencuia, as a stowaway, she assumes all risk if there is a collusion
hence WTC cannot be held liable.

18. The claim of Jason should be denied.

Cognition theory is when acceptance made by letter shall not bind the person making the offer
except from the time it came to his knowledge. Following the cognition theory, the claim of Jason
should be denied because the fire razed his house before he knew that his insurance was
approved hence there is no perfected insurance contract.

19.A Under the law registration s prevented by filing an earlier application for registration but it
does not mean that ownership is based upon earlier date of filing. In the case YYY filed
registration first it does not necessarily mean that iy has prior right over the trademark proof of
prior and continuous use must still be proved.

19.B Certificate of registration is merely a prima facie presumption of the validity of the
registration and the same may be rebutted by evidence. Evidence of prior and continuous use
can overcome presumption of validty if registration.

20. The application of holistic test is not correct.

Holistic test is applied to determined similarity on bases of visual, aural, and overall impressions
in the marks. The eye of the observer must not only focus on the predominant words but also on
other features which appears on both labels in order to determine whether they are confusingly
similar. In the case of burgers dominancy test shall be applied which focuses on dominant
features of the trademarks.

21. RTC is not correct.

There is unfair competition when they employ deception or other means where a person passess
off his goods or services of those who has already established goodwill to deceive the public by
imitating devices or appearance of the goods. Hoarding is not tantamount to unfair competition,
there is no pass off nor misrepresentation on the part of BA that would confuse goods with MS
Lite.

22. The shipowener may be held liable for injuries or death arising from negligence of the captain
in ace of collusion hwoever is liability is co-extensive with his interest in the vessel. In this case,
Nautica shipping is the owner of vessel and appliying limited liability rule Nautica is liable only up
to its interest in the vessel.

23. PNR should be held liable having the last clear chance to avoid the impending danger.

Under the Doctrine of last clear chance where both parties are negligent but the negligent act of
one is appreciably later in point of time than that of the other, or where it is impossible to
determine whose fault or negligence brought about the occurrence of the incident, the one who
had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with
the consequences arising therefrom.
24.A No because the beneficiary of X is not entitled to the proceeds the hypertension of x is a
material fact concealed to the insurer and concealment of such material fact entitles the insurer
to rescind the contract.

24.B It is a material information. Insured cannot recover even though the material fact not
disclosed is not the cause of loss.

25. X is not correct.

In Philippine currency deposits, deposits are considered to include deposits of whatever nature or
kind. It include funds deposited in banking institutions giving rise to creditor-debtor relationship
as well as those invested in the bank like trust accounts.

26. The law provides that proof of prior and continuous use is still necessary to establish
ownership over the trademark. Moreover, jurisprudence provides that a mere distributor does not
own the trademark to the goods he distributes, his rights over the trademark cannot prevail over
the owner.In this case, since Chen is the one who actually and continuously used the trademark
even before the filing of Clark Enterprise for registration, Chen is the one who owns and has the
right to register the trademark. Moreover, Clark Enterprise is merely a distributor, hence, his
rights over the trademark cannot prevail over Chen. Therefore, I will decide in favor of CHEN Inc.

27. A It is justified.

Investment in bonds issued by the PH Govt are absolutely confidentianl and cannot be examined,
inquired or looked into by any person, government official or bureau except when provided by
law and in the case it does not apply.

27.B First Bank should comply with the order of garnishment over the clients peso deposits
because bank deposits are not beyond the reach of judgement creditors. The disclosure of
information on bank deposits pursuant to the writ of garnishment is only incidental to th
execution of process but dollar deposits are exempt from garnishment or court order under
Foreign currency act hence with regard to this part of garnishment it shall not be complied with.

28. Carlo can claim the insurance benefit. If a person insures the life or health of another person
with himself as beneficiary, all his rights, title and interests in the policy shall automatically vest
in the person insured. Under the Insurance Code, every person has an insurable interest in the
life and health of himself, of his spouse and of his children. Carlo, as the husband of Bianca, has
an insurable interest in the life of the latter.

29. The law provides that, for purposes of motor vehicle liability insurance, there is theft if the
vehicle, with intent to gain, is taken from the owner without the latter’s consent.In this case, Ric
Silat does not have the right to possess the vehicle of Jess since he is not the owner. Thus, upon
possession of Ric Silat over the vehicle, it is already considered as theft under the insurance
policy which is compensable under such contract.

30. I will advise KU to file petition to cancel the registration of the name Kluwer Graduate School
of Business. Jinggy knew of the name because he went to Kluwer University hence by using that
name he is already in bad faith. KU as the owner of the name has the sole right to register the
same. Foreign marks even if not registered are accorded with protection against infringement or
unfair competition. PH and Germany being signatories of Paris Convention hence they are
entitled to such protection.
31. RN insurance is not correct. The undated cheques issued to RN on sept. 25 2013 for the full
amount of premium are considered date on the day it was issued hence Tina may claim. It was
not Tina nor Danny’s fault that it was not encashed. RN insurance had the check they could have
encashed before Danny’s death but my answer would not be the same if the cheques were
dated October 15, 2013 hence it was Danny who dated the cheque considering it is a post dated
cheques.

32. Dominancy Test is the proper test to be applied.

The essential element of infringement under the Intellectual Property Code is that the
infringing mark is likely to cause confusion. Dominancy test focuses on the similarity of the
dominant features of competing trademarks that might cause confusion or deception in the
mind of the purchasers. Imitation is not necessary.

In applying the dominancy test, the use of stylized S by Inter Pacific in its STron rubber
shoes infringes in mark already registered by skechers with the IPO. The dominant feature of
skechers is the stylized S even if Interpacific does not use the oval design it is still the same
with the dominant design of skechers.

33.A Under the Grandfather Rule, the nationality of corporation, which in turned is owned, by
another corporation, is determined by breaking down the equity structure of the shareholders of
the corporation. The rule that beneficial ownership of corporations engaged in nationalized
activities must reside in the hands of Filipino citizens. However, under the law, mass media
corporations are required to be 100% owned by Filipinos. ABS-ZBN failed to meet the minimum
requirement.

33.B The value of a PDR is equal to the value of one share in a company. The exercise of the
right represented by the PDR will result to the depositary receipts conversion to common shares.
It means the PDR holders have the right to buy the underlying shares at a specified price but are
not obligated to do so. They can also require the sale, and delivery of the proceeds of the
underlying shares. Although the underlying shares are owned by the issuer of the PDRs, the
same is not true if the PDR holder will exercise his rights as stated, as these shares will be
registered in the name of and owned by the PDR holder. Therefore, it is a clear violation of the
1987 Constitution which provides that the ownership of mass media shall be limited to citizens of
the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by
such citizen.

34.A It is not required to register to SEC under SRC. Investment contracts are securities that
have to be registered with the SEC before they can be distributed and sold; a contract,
transaction, or scheme where a person invests his money in a common enterprise and is led to
expect profits primarily from the effort of others. Applying the Howey Test, Networking
companies like in the case can hardly be regarded as profits from investment of money.
Therefore, it is not required to register to SEC under SRC.

34.B It is not required to register to SEC under SRC for the distribution or sale of gluta products.
Generally, an investment contract to be sold, or offered for sale or distribution to the public in the
Philippines, it should be registered with the SEC in accordance with SRC. However, this is not the
case for networking companies like Frontrow as it failed to be classified as investment contracts.

35.A I wil file a petition for rehabilitation which process has the purpose of continuance of the
coporate life and to restore a distressed corporation.
35.B Commenecet order shall have the effect of stay order whoch includes suspension of all
actions and proceedings in connection to the insolvent debtor and to suspend all action to
enforce judgement and prohibit the debtor to alienate its properties.

35.C Stay order shall not apply to any criminal action against the debtor or any individual officer
of debtor.Hnece, in the criminal case for harassment against the PAL officer, it shall not included
in the stay order.