IP case

ANDRES ROMERO vs. MAIDEN FORM BRASSIERE CO., INC., and THE DIRECTOR OF PATENTS

Facts:

On February 12, 1957, respondent company, a foreign corporation, filed with respondent Director of Patents
an application for registration (pursuant to Republic Act No. 166) of the trademark "Adagio" for the
brassieres manufactured by it. In its application, respondent company alleged that said trademark was first
used by it in the United States on October 26, 1937, and in the Philippines on August 31, 1946; that it had
been continuously used by it in trade in, or with the Philippines for over 10 years; that said trademark "is on
the date of this application, actually used by respondent company on the following goods, classified
according to the official classification of goods (Rule 82) - Brassieres, Class 40"; and that said trademark is
applied or affixed by respondent to the goods by placing thereon a woven label on which the trademark is
shown.

Acting on said application, respondent Director, on August 13, 1957, approved for publication in the Official
Gazette said trademark of respondent company, in accordance with Section 7 of Republic Act No. 166
(Trademark Law), having found, inter alia, that said trademark is "a fanciful and arbitrary use of a foreign
word adopted by applicant as a trademark for its product; that it is neither a surname nor a geographical
term, nor any that comes within the purview of Section 4 of Republic Act No. 166; and that the mark as used
by respondent company convincingly shows that it identifies and distinguishes respondent company's goods
from others."

On October 17, 1957, respondent Director issued to respondent company a certificate of registration of with,
trademark "Adagio".

On February 26, 1958, petitioner filed with respondent Director a petition for cancellation of said trademark,
on the grounds that it is a common descriptive name of an article or substance on which the patent has
expired; that its registration was obtained fraudulently or contrary to the provisions of Section 4, Chapter II
of Republic Act No. 166; and that the application for its registration was not filed in accordance with the
provisions of Section 37, Chapter XI of the same Act. Petitioner also alleged that said trademark has not
become distinctive of respondent company's goods or business; that it has been used by respondent
company to classify the goods (the brassieres) manufactured by it, in the same manner as petitioner uses
the same; that said trademark has been used by petitioner for almost 6 years; that it has become a common
descriptive name; and that it is not registered in accordance with the requirements of Section 37(a), Chapter
XI of Republic Act No. 166.

Issues:

1. Whether or not the trademark "Adagio" has become a common descriptive name of a particular style
of brassiere and is, therefore, unregistrable. (It is urged that said trademark had been used by local
brassiere manufacturers since 1948, without objection on the part of respondent company.).
2. Whether or not respondent Director erred in registering the trademark in question, despite appellee's
non-compliance with Section 37, paragraphs 1 and 4 (a) of Republic Act No. 166.
3. Whether or not the registration the trademark in question was fraudulent or contrary Section 4 of
Republic Act No. 166.
4. Whether or not respondent Director erred in declaring illegal the appropriation in the Philippines of
the trademark in question by appellant.

Held:

1. This claim is without basis in fact. The evidence shows that the trademark "Adagio" is a musical term,
which means slowly or in an easy manner, and was used as a trademark by the owners thereof (the
Rosenthals of Maiden Form Co., New York) because they are musically inclined. Being a musical term, it is
used in an arbitrary (fanciful) sense as a trademark for brassieres manufactured by respondent company. It
also appears that respondent company has, likewise, adopted other musical terms such as "Etude",
"Chansonette" "Prelude" "Over-ture", and "Concerto", to identify, as a trademark, the different styles or
types of its brassieres. As respondent Director pointed out, "the fact that said mark is used also to designate
a particular style of brassiere, does not affect its registrability as a trademark"

It is not true that respondent company did not object to the use of said trademark by petitioner and other
local brassiere manufacturers. The records show that respondent company's agent, Mr. Schwartz, warned
the Valleson Department Store to desist from the sale of the "Adagio" Royal Form brassieres manufactured
by petitioner, and even placed an advertisement in the local newspapers (Manila Daily Bulletin, Manila
Times, Fookien Times, and others) warning the public against unlawful use of said trademark.

Respondent company's long and continuous use of the trademark "Adagio" has not rendered it merely
descriptive of the product. In Winthrop Chemical Co. v. Blackman (268 NYS 653), it was held that
widespread dissemination does not justify the defendants in the use of the trademark.

Brassieres are usually of different types or styles, and appellee has used different trademarks for every type
as shown by its labels, Exhibits W-2 (Etude), W-3 (Chansonette), W-4 (Prelude), W-5 (Maidenette), and W-
6, (Overture). The mere fact that appellee uses "Adagio" for one type or style, does not affect the validity of
such word as a trademark.

2. This contention flows from a misconception of the application for registration of trademark of respondent.
As we see it, respondent's application was filed under the provisions of Section 2 of Republic Act No. 166
as amended by Section 1 of Republic Act 865 which reads as follows:

"SEC. 2. What are registrable — Trademarks, ... own by persons,

corporations, partnerships or associations domiciled ... in any foreign
country may be registered in accordance with the provisions of this
Act: Provided, That said trademarks, trade-names, or service marks are
actually in use in commerce and services not less than two months in
the Philippines before the time the applications for registration are
filed: ..."

Section 37 of Republic Act No. 166 can be availed of only where the Philippines is a party to an
international convention or treaty relating to trademarks, in which the trade-mark sought to be registered
need not be use in the Philippines.

3. There is no evidence to show that the registration of the trademark "Adagio" was obtained fraudulently by
appellee. The evidence record shows, on the other hand, that the trademark "Adagio" was first exclusively
in the Philippines by a appellee in the year 1932. There being no evidence of use of the mark by others
before 1932, or that appellee abandoned use thereof, the registration of the mark was made in accordance
with the Trademark Law. Granting that appellant used the mark when appellee stopped using it during the
period of time that the Government imposed restrictions on importation of respondent's brassiere bearing
the trademark, such temporary non-use did not affect the rights of appellee because it was occasioned by
government restrictions and was not permanent, intentional, and voluntary.

4. Appellant urges that its appropriation of the trademark in question cannot be considered illegal under
Philippine laws, because of non-compliance by appellee of Section 37 of Republic Act No. 166. But we have
already shown that Section 37 is not the provision invoked by respondent because the Philippines is not as
yet a party to any international convention or treaty relating to trademarks. The case of United Drug Co. v.
Rectanus, 248 U.S. 90, 39 S. Ct. 48, 63 L. Ed. 141, cited by appellant, is not applicable to the present case,
as the records show that appellee was the first user of the trademark in the Philippines, whereas appellant
was the later user. Granting that appellant used the trade-mark at the time appellee stopped using it due to
government restrictions on certain importations, such fact did not, as heretofore stated, constitute
abandonment of the trademark as to entitle anyone to its free use.
IP case

WILLIAM C. YAO, SR., LUISA C. YAO, RICHARD C. YAO, WILLIAM C. YAO JR., and ROGER C. YAO
vs. THE PEOPLE OF THE PHILIPPINES, PETRON CORPORATION and PILIPINAS SHELL
PETROLEUM CORP., and its Principal, SHELL INTL PETROLEUM CO. LTD.,

Facts:

Petitioners are incorporators and officers of MASAGANA GAS CORPORATION (MASAGANA), an entity
engaged in the refilling, sale and distribution of LPG products. Private respondents Petron Corporation
(Petron) and Pilipinas Shell Petroleum Corporation (Pilipinas Shell) are two of the largest bulk suppliers and
producers of LPG in the Philippines. Their LPG products are sold under the marks GASUL and SHELLANE,
respectively. Petron is the registered owner in the Philippines of the trademarks GASUL and GASUL
cylinders used for its LPG products. It is the sole entity in the Philippines authorized to allow refillers and
distributors to refill, use, sell, and distribute GASUL LPG containers, products and its
trademarks. Pilipinas Shell, on the other hand, is the authorized user in the Philippines of the tradename,
trademarks, symbols, or designs of its principal, Shell International Petroleum Company Limited (Shell
International), including the marks SHELLANE and SHELL device in connection with the production, sale
and distribution of SHELLANE LPGs. It is the only corporation in the Philippines authorized to
allow refillers and distributors to refill, use, sell and distribute SHELLANE LPG containers and products.
[7]chanroblesvirtuallawlibrary

On 3 April 2003, National Bureau of Investigation (NBI) agent Ritche N. Oblanca (Oblanca) filed two
applications for search warrant with the RTC, Branch 17, Cavite City, against petitioners and other
occupants of the MASAGANA compound located at Governors
Drive, Barangay Lapidario, TreceMartires, Cavite City, for alleged violation of Section 155, in relation to
Section 170 of Republic Act No. 8293, otherwise known as The Intellectual Property Code of the
Philippines.The two applications for search warrant uniformly alleged that per information, belief, and
personal verification of Oblanca, the petitioners are actually producing, selling, offering for sale and/or
distributing LPG products using steel cylinders owned by, and bearing the tradenames, trademarks, and
devices of Petron and Pilipinas Shell, without authority and in violation of the rights of the said entities.

Presiding Judge of the RTC, Branch 17, Cavite City, found probable cause and correspondingly issued
Search Warrants No. 2-2003 and No. 3-2003. The peace officers seized the items. stated in the search
warrants such as , under Search Warrants No. 2-2003, Empty/filled LPG cylinder tanks/containers, bearing
the tradename SHELLANE, SHELL (Device) of Pilipinas Shell Petroleum Corporation and the trademarks
and other devices owned by Shell International Petroleum Company, Ltd.; Machinery and/or equipment
being used or intended to be used for the purpose of illegally refilling LPG cylinders belonging
to Pilipinas Shell Petroleum Corporation bearing the latters tradename as well as the marks belonging to
Shell International Petroleum Company, Ltd., etc. Under Search Warrant No. 3-2003: Empty/filled LPG
cylinder tanks/containers, bearing PetronCorporations (Petron) tradename and its tradename GASUL and
other devices owned and/or used exclusively by Petron; Machinery and/or equipment being used or
intended to be used for the purpose of illegally refilling LPG cylinders belonging to Petron, etc.

On 30 April 2003, MASAGANA, as third party claimant, filed with the RTC a Motion for the Return of
Motor Compressor and LPG Refilling Machine. claimed that it is the owner of the said motor compressor
and LPG refilling machine; that these items were used in the operation of its legitimate business; and that
their seizure will jeopardize its business interests. These motions were denied.

Issue: Whether or not MASAGANA constituted trademark infringement.

Held:

Section 155 of Republic Act No. 8293 identifies the acts constituting trademark infringement, thus:

SEC. 155. Remedies; Infringement. Any person who shall, without the consent of the
owner of the registered mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a

registered mark or the same container or a dominant feature thereof in connection with
the sale, offering for sale, distribution, advertising of any goods or services including
other preparatory steps necessary to carry out the sale of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to
deceive; or
 155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant
feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to
labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be
used in commerce upon or in connection with the sale, offering for sale, distribution, or
advertising of goods or services on or in connection with which such use is likely to
cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for
infringement by the registrant for the remedies hereinafter set forth: Provided, That the
infringement takes place at the moment any of the acts stated in Subsection 155.1 or
this subsection are committed regardless of whether there is actual sale of goods or
services using the infringing material.

As can be gleaned in Section 155.1, mere unauthorized use of a container bearing a registered trademark
in connection with the sale, distribution or advertising of goods or services which is ikely to cause confusion,
mistake or deception among the buyers/consumers can be considered as trademark infringement.

In his sworn affidavits, Oblanca stated that before conducting an investigation on the alleged illegal activities
of MASAGANA, he reviewed the certificates of trademark registrations issued by the Philippine Intellectual
Property Office in favor of Petron and Pilipinas Shell; that he confirmed from Petron and Pilipinas Shell that
MASAGANA is not authorized to sell, use, refill or distribute GASUL and SHELLANE LPG cylinder
containers; that he and Alajar monitored the activities of MASAGANA in its refilling plant station located
within its compound at Governors Drive, Barangay Lapidario, Trece Martires, Cavite City; that, using
different names, they conducted two test-buys therein where they purchased LPG cylinders bearing the
trademarks GASUL and SHELLANE; that the said GASUL and SHELLANE LPG cylinders were refilled in
their presence by the MASAGANA employees; that while they were inside the MASAGANA compound, he
noticed stock piles of multi-branded cylinders including GASUL and SHELLANE LPG cylinders; and that
they observed delivery trucks loaded with GASUL and SHELLANE LPG cylinders coming in and out of the
MASAGANA compound and making deliveries to various retail outlets. These allegations were corroborated
by Alajar in his separate affidavits.

Extant from the testimonial, documentary and object evidence is that Oblanca and Alajarhave personal
knowledge of the fact that petitioners, through MASAGANA, have been using the LPG cylinders bearing the
marks GASUL and SHELLANE without permission from Petron and Pilipinas Shell, a probable cause for
trademark infringement.
Maritime Law Case

SWEET LINES, INC., vs. THE HONORABLE COURT OF APPEALS, MICAELA B. QUINTOS, FR. JOSE
BACATAN, S.J., MARCIANO CABRAS and ANDREA VELOSO

Facts:

Private respondents purchased first- class tickets from petitioner at the latter's office in Cebu City. They
were to board petitioner's vessel, M/V Sweet Grace, bound for Catbalogan, Western Samar. Instead of
departing at the scheduled hour of about midnight on July 8, 1972, the vessel set sail at 3:00 A.M. of July 9,
1972 only to be towed back to Cebu due to engine trouble, arriving there at about 4:00 P.M. on the same
day. Repairs having been accomplished, the vessel lifted anchor again on July 10, 1972 at around 8:00
A.M.

Instead of docking at Catbalogan, which was the first port of call, the vessel proceeded direct to Tacloban at
around 9:00 P.M. of July 10, 1972. Private respondents had no recourse but to disembark and board a
ferryboat to Catbalogan.

Hence, this suit for damages for breach of contract of carriage which the Trial Court, affirmed by respondent
Appellate Court ordering the defendant Sweet Lines, Incorporated to pay to the plaintiffs.

Issue: Whether or not Sweet Lines, Inc. breached its contract of carriage.

Held: Yes.

The governing provisions are found in the Code of Commerce and read as follows:

ART. 614. A captain who, having agreed to make a voyage, fails to fulfill his
undertaking, without being prevented by fortuitous event or force majeure, shall
indemnify all the losses which his failure may cause, without prejudice to criminal
penalties which may be proper.

and

ART. 698. In case of interruption of a voyage already begun, the passengers shall
only be obliged to pay the fare in proportion to the distance covered, without right
to recover damages if the interruption is due to fortuitous event or force majeure,
but with a right to indemnity, if the interruption should have been caused by the
captain exclusively. If the interruption should be caused by the disability of the
vessel, and the passenger should agree to wait for her repairs, he may not be
required to pay any increased fare of passage, but his living expenses during the
delay shall be for his own account.

The crucial factor then is the existence of a fortuitous event or force majeure. Without it, the right to
damages and indemnity exists against a captain who fails to fulfill his undertaking or where the interruption
has been caused by the captain exclusively.

As found by both Courts below, there was no fortuitous event or force majeure which prevented the vessel
from fulfilling its undertaking of taking private respondents to Catbalogan. In the first place, mechanical
defects in the carrier are not considered a caso fortuito that exempts the carrier from responsibility.

In the second place, even granting arguendo that the engine failure was a fortuitous event, it accounted only
for the delay in departure. When the vessel finally left the port of Cebu on July 10, 1972, there was no
longer any force majeure that justified by-passing a port of call. The vessel was completely repaired the
following day after it was towed back to Cebu. In fact, after docking at Tacloban City, it left the next day for
Manila to complete its voyage.

The reason for by-passing the port of Catbalogan, as admitted by petitioner's General Manager, was to
enable the vessel to catch up with its schedule for the next week. The record also discloses that there were
50 passengers for Tacloban compared to 20 passengers for Catbalogan, so that the Catbalogan phase
could be scrapped without too much loss for the company.

In defense, petitioner cannot rely on the conditions in small bold print at the back of the ticket reading.

The passenger's acceptance of this ticket shall be considered as an acceptance of the

following conditions:
 3. In case the vessel cannot continue or complete the trip for any cause whatsoever, the
carrier reserves the right to bring the passenger to his/her destination at the expense of the
carrier or to cancel the ticket and refund the passenger the value of his/her ticket;

xxx xxx xxx

11. The sailing schedule of the vessel for which this ticket was issued is subject to change
without previous notice. (Exhibit "l -A")

Even assuming that those conditions are squarely applicable to the case at bar, petitioner did not comply
with the same. It did not cancel the ticket nor did it refund the value of the tickets to private respondents.
Besides, it was not the vessel's sailing schedule that was involved. Private respondents' complaint is
directed not at the delayed departure the next day but at the by- passing of Catbalogan, their destination.
Had petitioner notified them previously, and offered to bring them to their destination at its expense, or
refunded the value of the tickets purchased, perhaps, this controversy would not have arisen.

Furthermore, the conditions relied upon by petitioner cannot prevail over Articles 614 and 698 of the Code
of Commerce heretofore quoted.

The voyage to Catbalogan was "interrupted" by the captain upon instruction of management. The
"interruption" was not due to fortuitous event or for majeure nor to disability of the vessel. Having been
caused by the captain upon instruction of management, the passengers' right to indemnity is evident. The
owner of a vessel and the ship agent shall be civilly liable for the acts of the captain.
Maritime Law Case

WALLEM PHILIPPINES SHIPPING, INC., vs. S.R. FARMS, INC.,

Facts:

On March 25, 1992, Continental Enterprises, Ltd. loaded on board the vessel M/V "Hui Yang," at Bedi
Bunder, India, a shipment of Indian Soya Bean Meal, for transportation and delivery to Manila, with plaintiff
[herein respondent] as consignee/notify party. The said shipment is said to weigh 1,100 metric tons and
covered by Bill of Lading No. BEDI 4 dated March 25, 1992 (Exhibit A; also Exhibit I). The vessel is owned
and operated by defendant Conti-Feed, with defendant [herein petitioner] Wallem as its ship agent.

The subject cargo is part of the entire shipment of Indian Soya Bean Meal/India Rapeseed Meal loaded in
bulk on board the said vessel for delivery to several consignees. Among the consignees were San Miguel
Corporation and Vitarich Corporation, including the herein plaintiff

On April 11, 1992, the said vessel, M/V "Hui Yang" arrived at the port of Manila, Pier 7 South Harbor.
Thereafter, the shipment was discharged and transferred into the custody of the receiving barges, the
NorthFront-333 and NorthFront-444. The offloading of the shipment went on until April 15, 1992 and was
handled by [Ocean Terminal Services, Inc.] OTSI using its own manpower and equipment and without the
participation of the crew members of the vessel. All throughout the entire period of unloading operation,
good and fair weather condition prevailed.

At the instance of the plaintiff, a cargo check of the subject shipment was made by one Lorenzo Bituin of
Erne Maritime and Allied Services, Co. Inc., who noted a shortage in the shipment which was placed at
80.467 metric tons based on draft survey made on the NorthFront-33 and NorthFront-444 showing that the
quantity of cargo unloaded from the vessel was only 1019.53 metric tons. Thus, per the bill of lading, there
was an estimated shortage of 80.467.

Upon discovery thereof, the vessel chief officer was immediately notified of the said short shipment by the
cargo surveyor, who accordingly issued the corresponding Certificate of Discharge dated April 15, 1992
(Exhibit D). The survey conducted and the resultant findings thereon are embodied in the Report of
Superintendence dated April 21, 1992 (Exhibits C to C-2) and in the Barge Survey Report both submitted by
Lorenzo Bituin (Exhibits C-3 and C-4). As testified to by Lorenzo Bituin, this alleged shortage of 80.467
metric tons was arrived at using the draft survey method which calls for the measurement of the light and
loaded condition of the barge in relation to the weight of the water supposedly displaced.

Petitioner then filed a Complaint for damages against Conti-Feed & Maritime Pvt. Ltd., a foreign corporation
doing business in the Philippines and the owner of M/V "Hui Yang"; RCS Shipping Agencies, Inc., the ship
agent of Conti-Feed; Ocean Terminal Services, Inc. (OTSI), the arrastre operator at Anchorage No. 7,
South Harbor, Manila; and Cargo Trade, the customs broker.

On June 7, 1993, respondent filed an Amended Complaint impleading herein petitioner as defendant
alleging that the latter, and not RCS, was the one which, in fact, acted as Conti-Feed’s ship agent.

RTC rendered its Decision dismissing respondent’s complaint. Court of Appeals REVERSED and SET
ASIDE and another one entered ordering defendants-appellees Conti-Feed and Maritime Pvt. Ltd. and
Wallem Philippines Shipping, Inc., to pay the sum representing the value of the 80.467 metric tons of Indian
Soya Beans shortdelivered, with legal interest from the time the judgment becomes final until full payment.

Issue: Whether or not the claim against petitioner was timely filed.

Held:

With respect to the prescriptive period involving claims arising from shortage, loss of or damage to cargoes
sustained during transit, the law that governs the instant case is the Carriage of Goods by Sea
Act17 (COGSA), Section 3 (6) of which provides:

Unless notice of loss or damage and the general nature of such loss or damage be
given in writing to the carrier or his agent at the port of discharge or at the time of the
removal of the goods into the custody of the person entitled to delivery thereof under
the contract of carriage, such removal shall be prima facie evidence of the delivery by
the carrier of the goods as described in the bill of lading. If the loss or damage is not
apparent, the notice must be given within three days of delivery.
 Said notice of loss or damage may be endorsed upon the receipt for the goods given
by the person taking delivery thereof.

The notice in writing need not be given if the state of the goods has at the time of their
receipt been the subject of joint survey or inspection.

In any event, the carrier and the ship shall be discharged from all liability in respect of
loss or damage unless suit is brought within one year after delivery of the goods or the
date when the goods should have been delivered;Provided, That, if a notice of loss or
damage, either apparent or concealed, is not given as provided for in this section, that
fact shall not affect or prejudice the right of the shipper to bring suit within one year
after the delivery of the goods or the date when the goods should have been delivered.

In the case of any actual or apprehended loss or damage, the carrier and the receiver
shall give all reasonable facilities to each other for inspecting and tallying the goods.

Petitioner claims that pursuant to the above-cited provision, respondent should have filed its Notice of Loss
within three days from delivery. It asserts that the cargo was fully discharged from the vessel on April 15,
1992, but that respondent failed to file any written notice of claim. Petitioner also avers that, pursuant to the
same provision of the COGSA, respondent’s claim had already prescribed because the complaint for
damages was filed more than one year after the shipment was discharged.

The Court agrees. Under Section 3 (6) of the COGSA, notice of loss or damages must be filed within three
days of delivery. Admittedly, respondent did not comply with this provision.

Under the same provision, however, a failure to file a notice of claim within three days will not bar recovery if
a suit is nonetheless filed within one year from delivery of the goods or from the date when the goods
should have been delivered. In Loadstar Shipping Co., Inc. v. Court of Appeals,19 the Court ruled that a
claim is not barred by prescription as long as the one-year period has not lapsed. Thus, in the words of
the ponente, Chief Justice Hilario G. Davide Jr.:Inasmuch as neither the Civil Code nor the Code of
Commerce states a specific prescriptive period on the matter, the Carriage of Goods by Sea Act (COGSA)
-- which provides for a one-year period of limitation on claims for loss of, or damage to, cargoes sustained
during transit -- may be applied suppletorily to the case at bar.

In the instant case, the Court is not persuaded by respondent’s claim that the complaint against petitioner
was timely filed. Respondent argues that the suit for damages was filed on March 11, 1993, which is within
one year from the time the vessel carrying the subject cargo arrived at the Port of Manila on April 11, 1993,
or from the time the shipment was completely discharged from the vessel on April 15, 1992.

There is no dispute that the vessel carrying the shipment arrived at the Port of Manila on April 11, 1992 and
that the cargo was completely discharged therefrom on April 15, 1992. However, respondent erred in
arguing that the complaint for damages, insofar as the petitioner is concerned, was filed on March 11,
1993.1awph!l

As the records would show, petitioner was not impleaded as a defendant in the original complaint filed on
March 11, 1993. It was only on June 7, 1993 that the Amended Complaint, impleading petitioner as
defendant, was filed.Respondent cannot argue that the filing of the Amended Complaint against petitioner
should retroact to the date of the filing of the original complaint.

The settled rule is that the filing of an amended pleading does not retroact to the date of the filing of the
original; hence, the statute of limitation runs until the submission of the amendment. It is true that, as an
exception, this Court has held that an amendment which merely supplements and amplifies facts originally
alleged in the complaint relates back to the date of the commencement of the action and is not barred by
the statute of limitations which expired after the service of the original complaint. The exception, however,
would not apply to the party impleaded for the first time in the amended complaint.

The rule on the non-applicability of the curative and retroactive effect of an amended complaint, insofar as
newly impleaded defendants are concerned, has been established as early as in the case of Aetna
Insurance Co. v. Luzon Stevedoring Corporation.25 In the said case, the defendant Barber Lines Far East
Service was impleaded for the first time in the amended complaint which was filed after the one-year period
of prescription. The order of the lower court dismissing the amended complaint against the said defendant
on ground of prescription was affirmed by this Court.

In the instant case, petitioner was only impleaded in the amended Complaint of June 7, 1993, or one (1)
year, one (1) month and twenty-three (23) days from April 15, 1992, the date when the subject cargo was
fully unloaded from the vessel. Hence, reckoned from April 15, 1992, the one-year prescriptive period had
already lapsed.