Judicial Affidavit

JUDICIAL AFFIDAVIT
RULE
(A.M. No. 12-8-8-SC)
JUDICIAL AFFIDAVIT RULE [JAR]
(A.M. No. 12-8-8-SC)
• Scope
(1) Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the
Shari' a Circuit Courts but shall not apply to small claims cases under
A.M. 08-8-7-SC;
(2) RTCs and the Shari'a District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals (CTA), the Court
of Appeals (CA), and the Shari'a Appellate Courts;
(4) The investigating officers and bodies authorized by the
Supreme Court to receive evidence, including the Integrated Bar of the
Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the Supreme Court, insofar as
their existing rules of procedure contravene the provisions of the JAR.
(A.M. No. 12-8-8-SC)
• Submission of Judicial Affidavits and Exhibits in
lieu of direct testimonies.
• The parties shall file with the court and serve on the
adverse party, personally or by licensed courier service,
not later than five (5) days before pre-trial or preliminary
conference or the scheduled hearing with respect to
motions and incidents:
• (1) The judicial affidavits of their witnesses, which shall take
the place of such witnesses' direct testimonies; and
• (2) The parties' documentary or object evidence, if any,
which shall be attached to the judicial affidavits and marked
as Exhibits A, B, C, and so on in the case of the complainant
or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case
of the respondent or the defendant.
(A.M. No. 12-8-8-SC)
• Submission of Judicial Affidavits and Exhibits in
lieu of direct testimonies.
• NOTE: Should a party or a witness desire to keep the original
document or object evidence in his possession, he may, after
the same has been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party or witness
shall bring the original document or object evidence for
comparison during the preliminary conference with the attached
copy, reproduction, or pictures, failing which the latter shall not
be admitted.
• This is without prejudice to the introduction of secondary

evidence in place of the original when allowed by existing rules.
(JAR, Section 2)
(A.M. No. 12-8-8-SC)
• Contents
• A judicial affidavit shall be prepared in the language known to
the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the following:
• (a) The name, age, residence or business address, and
occupation of the witness;
• (b) The name and address of the lawyer who conducts or

supervises the examination of the witness and the place where
the examination is being held;
• (c) A statement that the witness is answering the questions

asked of him, fully conscious that he does so under oath, and
that he may face criminal liability for false testimony or perjury;
(A.M. No. 12-8-8-SC)
• Contents
• (d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
• (1) Show the circumstances under which the witness acquired the facts
upon which he testifies;
• (2) Elicit from him those facts which are relevant to the issues that the
case presents; and
• (3) Identify the attached documentary and object evidence and establish
their authenticity in accordance with the Rules of Court;
• (e) The signature of the witness over his printed name; and
• (f) A jurat with the signature of the notary public who administers
the oath or an officer who is authorized by law to administer the
same.
(A.M. No. 12-8-8-SC)
• Sworn Attestation of the Lawyer
• (a) The judicial affidavit shall contain a sworn attestation at the
end, executed by the lawyer who conducted or supervised the
examination of the witness, to the effect that:
• (1) He faithfully recorded or caused to be recorded the questions he

asked and the corresponding answers that the witness gave; and
• (2) Neither he nor any other person then present or assisting him
coached the witness regarding the latter's answers.
• (b) A false attestation shall subject the lawyer mentioned to

disciplinary action, including disbarment. (JAR, Section 4)
(A.M. No. 12-8-8-SC)
• Subpoena
• If the government employee or official, or the requested
witness, who is neither the witness of the adverse party nor a
hostile witness, unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant
books, documents, or other things under his control available
for copying, authentication, and eventual production in court,
the requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of
the Rules of Court. The rules governing the issuance of a
subpoena to the witness in this case shall be the same as
when taking his deposition except that the taking of a judicial
affidavit shal1 be understood to be ex parte. [JAR, Section 5]
(A.M. No. 12-8-8-SC)
• Offer of and objections to testimony in judicial
affidavit.
• The party presenting the judicial affidavit of his witness in place of
direct testimony shall state the purpose of such testimony at the
start of the presentation of the witness.
• The adverse party may move to disqualify the witness or to strike

out his affidavit or any of the answers found in it on ground of
inadmissibility. The court shall promptly rule on the motion and, if
granted, shall cause the marking of any excluded answer by
placing it in brackets under the initials of an authorized court
personnel, without prejudice to a tender of excluded evidence
under Section 40 of Rule 132 of the Rules of Court. [JAR, Section
6]
(A.M. No. 12-8-8-SC)
• Examination of the witness on his judicial affidavit.
• The adverse party shall have the right to cross-examine the
witness on his judicial affidavit and on the exhibits attached to the
same.
• The party who presents the witness may also examine him as on
re-direct.
• In every case, the court shall take active part in examining the
witness to determine his credibility as well as the truth of his
testimony and to elicit the answers that it needs for resolving the
issues. [JAR, Section 7]
(A.M. No. 12-8-8-SC)
• Oral offer of and objections to exhibits.
• (a) Upon the termination of the testimony of his last witness, a
party shall immediately make an oral offer of evidence of his
documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for which he
offers the particular exhibit.
• (b) After each piece of exhibit is offered, the adverse party shall
state the legal ground for his objection, if any, to its admission, and
the court shall immediately make its ruling respecting that exhibit.
• (c) Since the documentary or object exhibits form part of the

judicial affidavits that describe and authenticate them, it is
sufficient that such exhibits are simply cited by their markings
during the offers, the objections, and the rulings, dispensing with
the description of each exhibit. [JAR, Section 8]
(A.M. No. 12-8-8-SC)
• Application of rule to criminal actions.
• (1) Where the maximum of the imposable penalty does not exceed six
years;
• (2) Where the accused agrees to the use of judicial affidavits,

irrespective of the penalty involved; or
• (3) With respect to the civil aspect of the actions, whatever the
penalties involved are.
(A.M. No. 12-8-8-SC)
• The prosecution shall submit the judicial affidavits of its witnesses not
later than five days before the pre-trial, serving copies of the same
upon the accused. The complainant or public prosecutor shall attach
to the affidavits such documentary or object evidence as he may
have, marking them as Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence shall be admitted at the
trial.
• If the accused desires to be heard on his defense after receipt of the

judicial affidavits of the prosecution, he shall have the option to submit
his judicial affidavit as well as those of his witnesses to the court
within ten days from receipt of such affidavits and serve a copy of
each on the public and private prosecutor, including his documentary
and object evidence previously marked as Exhibits 1, 2, 3, and so on.
These affidavits shall serve as direct testimonies of the accused and
his witnesses when they appear before the court to testify. [JAR,
Section 9]
(A.M. No. 12-8-8-SC)
OCA CIRCULAR NOS. 05-2013 and 01-2014
1. Until 31 December 2014, the public prosecutors shall use,

for the purpose of complying with the Judicial Affidavit Rule in the first
and second level courts during the one-year period, the sworn
statements that the complainant and his or her witnesses submit
during the initiation of the criminal action before the office of the
public prosecutor or directly before the trial court.
(A.M. No. 12-8-8-SC)
2. The modified compliance granted shall not apply where the

complainant is represented by private prosecutor duly
empowered in accordance with the Rules of Court to appear in
court and prosecute the case. The private prosecutor shall be
charged in the applicable cases with the duty to prepare the
required judicial affidavits of the complainant and his or her
witnesses and cause the service of copies of the same upon the
accused.
(A.M. No. 12-8-8-SC)
IMPORTANT NOTE: If there is a private prosecutor, the

prosecution needs to comply with the JAR, when applicable.
SUGGESTION: Have the complaint-affidavits, affidavits of witnesses,

already comply with the JAR before the filing of a criminal Information.
(A.M. No. 12-8-8-SC)
• Effect of non-compliance with the judicial Affidavit
Rule.
• A party who fails to submit the required judicial affidavits and exhibits
on time shall be deemed to have waived their submission. The court
may, however, allow only once the late submission of the same
provided, the delay is for a valid reason, would not unduly prejudice
the opposing party, and the defaulting party pays a fine of not less
than P 1,000.00 nor more than P 5,000.00 at the discretion of the
court.
(A.M. No. 12-8-8-SC)
Rule.
• The court shall not consider the affidavit of any witness who fails to
appear at the scheduled hearing of the case as required. Counsel
who fails to appear without valid cause despite notice shall be
deemed to have waived his client's right to confront by cross-
examination the witnesses there present.
(A.M. No. 12-8-8-SC)
Rule.
• The court shall not admit as evidence judicial affidavits that do not
conform to the content requirements of Section 3 and the attestation
requirement of Section 4 above. The court may, however, allow only
once the subsequent submission of the compliant replacement
affidavits before the hearing or trial provided the delay is for a valid
reason and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible for their
preparation and submission pays a fine of not less than P1,000.00
nor more than P 5,000.00, at the discretion of the court. [JAR, Section
10].
THE JUDICIAL AFFIDAVIT
RULE’S EFFECT ON TRIAL
TECHNIQUE:
LOSING THE ART OF WAR?
In his article, “CREATING A MASTERPIECE: THE ART OF DIRECT

EXAMINATION,” Gerald A. Klein of Klein & Wilson, a California law
firm, wrote:
“It has been said, ‘a monkey with a razor blade can destroy the
Mona Lisa, but only a true artist can create it.’ The same might be
said of the distinction between cross-examination and direct
examination. A lawyer preparing direct examination must work
from a blank canvas and create a breath-taking image to win the
hearts and minds of jurors.
“It is easier to tear an opposing witness apart than to
captivate a jury using testimony from your own
witness. Creating a work of art through direct
examination requires careful thought and planning.”
The JAR has taken out the drama of direct

examination.
There is nothing captivating in having a witness

merely identify his affidavit.
• What were lost?
1. The need to carefully prepare, think and strategize

how to present a witness on direct examination - to
have testimonial, documentary and object evidence
made part of the court record. To paint a picture and
direct a drama that your client is indeed a victim or is
innocent.
• What were lost?
2. The opportunity to practice the objections you learned

in law school – or watched in TV or a movie - Vague,
Argumentative, Asked and answered, Badgering, Best
evidence rule, Calls for a conclusion, Compound
question, Hearsay, Incompetent, Leading question,
Calls for a Narration, Privileged, Irrelevant or
immaterial, Counsel is testifying, etc.
• What were lost?
3. The joy of stopping or confusing a witness or his
opposing counsel by raising objections;
4. The immediate exchange of legal arguments

between opposing counsels on objections; and
5. The thrill of having an objection overruled or

sustained, or having documentary or object evidence
immediately included or excluded.
• With the JAR, practitioners have used the affidavits to
include objectionable questions and inadmissible
testimony.
• While objections can be made before a witness testifies,

some courts just note these objections and subject the
witness to cross-examination.
• Documentary evidence which should have been excluded
and not admitted (i.e., unauthenticated documents and
photocopies) are made part of the court records, and may
be considered.
29
SPECIAL IP RULES
A.M. No. 10-3-10-SC, otherwise known

as the “Rules of Procedure for
Intellectual Property Rights Cases”
(Approved by the Supreme Court in a Resolution
dated 18 October 2011)
30
Common Rules on Admissibility

and Weight of Evidence
• Evidence of good faith. - In cases of patent infringement, trademark

infringement, and copyright infringement, fraudulent intent on the part
of the defendant or the accused need not be established. Good faith
is not a defense unless the defendant or the accused claims to be a
prior user under Sections 73 and 159 of the Intellectual Property
Code or when damages may be recovered under Sections 76, 156,
and 216 of the Code. (Rule 16, Section 1)
•
• Foreign official documents. – All official records kept in a foreign
country, including certificates of registration, shall be admissible if
authenticated by the proper consular office of the Philippines having
jurisdiction over the country where such records and/or certificates
are kept. However, such authentication of foreign official documents
may be the subject of the agreement of the parties. (Rule 16, Section
2).
31
Common Rules on Admissibility

and Weight of Evidence
• Deposition of foreign witness. – The deposition of any witness abroad

shall be taken within six (6) months from the date of the order
allowing the deposition, unless the failure to take the deposition within
the period is caused by a fortuitous event, fraud, accident, mistake or
excusable negligence. (Rule 16, Section 4)
•
• Presumptions in the Intellectual Property Code. – The presumptions
in the Intellectual Property Code on patents, trademarks and
copyright shall apply to these Rules. (Rule 16, Section 5)
•
• Suppletory application of the rules on discovery and evidence. –
Unless inconsistent with these Rules, the rules on discovery and
evidence under the Rules of Court shall apply. (Rule 16, Section 6)
32
Presumptions favoring IP right holders under A.M. No. 10-3-

10-SC.
(PATENTS)
For presumptions regarding patents, Rule 17, Section 2 states that:
• a) In all cases, a letters patent issued by the Intellectual Property

Office – Bureau of Patents, or its predecessor or successor-agencies,
is prima facie evidence of its existence and validity during the term
specified therein against all persons, unless the same has already
been cancelled or voided by a final and executory judgment or order.
• b) Moreover, letters patents issued by the Intellectual Property Office

– Bureau of Patents, or its predecessor or successor-agencies, are
presumed to have been validly issued by said government agency in
accordance with applicable laws, unless otherwise contradicted or
overcome by other admissible evidence showing that the same was
irregularly issued.
33

10-SC.
(PATENTS)
Please note that these presumptions under the new Rules are NOT new,
and are a codification of Supreme Court’s rulings in the earlier cases.
Cresner Precision v. Court of Appeals (G.R. No. 118708, 2 February

1998):
• A letters patent has in its favor not only the presumption of validity of its
patent, but that of a legal and factual first and true inventor of the
invention.
• There is a presumption that the Philippine Patent Office has correctly

determined the patentability of the improvement by the private
respondent of the process in question.
34

10-SC.
(PATENTS)
Please note that these presumptions under the new Rules are NOT new,
and are a codification of Supreme Court’s rulings in the earlier cases.
Del Rosario v. Court of Appeals (G.R. No. 115106, 15 March 1996):
Where petitioner introduces the patent in evidence, if it is in due form, it

affords a prima facie presumption of its correctness and validity. The
decision of the Director of Patents in granting the patent is always
presumed to be correct, and the burden then shifts to respondent to
overcome this presumption by competent evidence..
35

10-SC.
(PATENTS)
• Rule 17, Section 3 also provides for the presumption of knowledge of

existing patent rights if the words “Philippine Patent” with the patent
number appears: (a) on the patented invention or product
manufactured using the patented process; (b) on the container or
package in which said article is supplied to the public; or (c) on the
advertising material relating to the patented product or process.
• N.B. This presumption of knowledge of existence of patent rights is

applicable only for the awarding of damages, and is not applicable in
proving that an accused in a criminal case knowingly committed the
acts which constitute patent infringement.
36

10-SC.
(TRADEMARKS AND UNFAIR COMPETITION)
• For trademark infringement and unfair competition cases, Rule 18,

Section 3 provides that likelihood of confusion is presumed in case an
identical sign or mark is used for identical goods or services.
37

10-SC.
What if the goods or services are not identical?
Rule 18, Section 4 provides that in determining whether one trademark

is confusingly similar to or is a colorable imitation of another, the court
must consider the general impression of the ordinary purchaser,
buying under the normally prevalent conditions in trade and giving
the attention such purchasers usually give in buying that class of
goods (Take note of the Diaz v. Levi’s case).
38

10-SC.
• Visual, aural, connotative comparisons and overall impressions
engendered by the marks in controversy as they are
encountered in the realities of the marketplace must be taken
into account. Where there are both similarities and differences in
the marks, these must be weighed against one another to see
which predominates.
• The following factors, which are not exclusive, may be taken into
account:
(a) the strength of plaintiff’s mark;
(b) the degree of similarity between the plaintiff’s and the
defendant’s marks;
(c) the proximity of the products or services;
39

10-SC.
• The following factors, which are not exclusive, may be taken into
account:
(d) the likelihood that the plaintiff will bridge the gap;
(e) evidence of actual confusion;
(f) the defendant's good faith in adopting the mark;
(g) the quality of defendant's product or service; and/or
(h) the sophistication of the buyers (Note: Skechers case).
40

10-SC.
• “Colorable imitation” denotes such a close or ingenious imitation as to

be calculated to deceive ordinary persons, or such a resemblance to
the original as to deceive an ordinary purchaser giving such attention
as a purchaser usually gives, as to cause him to purchase the one
supposing it to be the other. (Rule 18, Section 4)
41

10-SC.
Certificate of Registration of a Mark - Under Section 138 of the IP Code

and Rule 18, Section 1 of A.M. No. 10-3-10-SC, a certificate of
registration of a mark shall be prima facie evidence of:
(a) the validity of the registration;

(b) the registrant's ownership of the mark; and
(c) of the registrant's exclusive right to use the same in connection with
the goods or services and those that are related thereto specified in the
certificate.
42

10-SC.
• N.B. Registration of a trademark, by itself, is NOT a mode of

acquiring ownership of the mark which was registered.
• The presumption brought about by the registration of mark is merely

considered prima facie evidence which may rebutted by contrary
evidence.
43

10-SC.
Birkenstock v. Philippine Shoe Expo Marketing Corporation
(G.R. No. 194307, 20 November 2013)
• Registration merely creates a prima facie presumption of the validity

of the registration, of the registrant’s ownership of the trademark, and
of the exclusive right to the use thereof. Such presumption, just like
the presumptive regularity in the performance of official functions, is
rebuttable and must give way to evidence to the contrary.
• It is not the application or registration of a trademark that vests

ownership thereof, but it is the ownership of a trademark that confers
the right to register the same.
44

10-SC.
Birkenstock v. Philippine Shoe Expo Marketing Corporation
(G.R. No. 194307, 20 November 2013)
• The presumption of ownership accorded to a registrant must

necessarily yield to superior evidence of actual and real ownership of
a trademark.
45

10-SC.
Rule 18, Section 2 of A.M. No. 10-3-10-SC also sets various criteria in
determining whether or not a mark is well-known, to wit:
Well-known mark. – In determining whether a mark is well-

known, account shall be taken of the knowledge of the relevant sector
of the public, rather than of the public at large, including
knowledge in the Philippines which has been obtained as a
result of the promotion of the mark. The following criteria or any
combination thereof may be taken into account in determining whether
a mark is well-known:
(a) the duration, extent and geographical area of any use of the
mark; in particular, the duration, extent and geographical area
of any promotion of the mark, including advertising or publicity and
the presentation, at fairs or exhibitions, of the goods and/or
services to which the mark applies;
46

10-SC.
The following criteria or any combination thereof may be taken into
account in determining whether a mark is well-known:
(b) the market share, in the Philippines and in other countries, of the
goods and/or services to which the mark applies;
(c) the degree of the inherent or acquired distinction of the mark;
(d) the quality-image or reputation acquired by the mark;
(e) the extent to which the mark has been registered in the world;
(f) the exclusivity of registration attained by the mark in the world;
(g) the extent to which the mark has been used in the world;
(h) the exclusivity of use attained by the mark in the world;
47

10-SC.
(i) the commercial value attributed to the mark in the world;
(j) the record of successful protection of the rights in the mark;
(k) the outcome of litigations dealing with the issue of whether the
mark is a well-known mark; and
(l) the presence or absence of identical or similar marks
validly registered for or used on identical or similar goods or
services and owned by persons other than the person claiming that
his mark is a well-known mark.
Provided, further, that the mark is well-known both

internationally and in the Philippines.
48

10-SC.
(i) the commercial value attributed to the mark in the world;
(j) the record of successful protection of the rights in the mark;
(k) the outcome of litigations dealing with the issue of whether the
mark is a well-known mark; and
(l) the presence or absence of identical or similar marks
validly registered for or used on identical or similar goods or
services and owned by persons other than the person claiming that
his mark is a well-known mark.
Provided, further, that the mark is well-known both

internationally and in the Philippines.
49

10-SC.
• A registered mark shall not be deemed to be the generic name of
goods or services solely because such mark is also used as a name
of or to identify a unique product or service. (1st par., Rule 18, Section
7)
•
• The test for determining whether the mark is or has become the
generic name of goods or services on or in connection with which it
has been used shall be the primary significance of the mark to the
relevant public rather than purchaser motivation. (2nd par., Rule 18,
Section 7).
50

10-SC.
(TRADEMARKS)
• Rule 18, Section 2 is mostly based on Rule 102 of the Intellectual
Property Office’s Rules and Regulations on Trademarks, Service
Marks, Trade Names and Marked or Stamped Containers, which
have been applied by the Supreme Court in numerous cases (see
Great White Shark Enterprises, Inc. v. Danilo M. Caralde, G.R. No.
192294, 21 November 2012; and Sehwani v. In-N-Out Burger, Inc.
G.R. No. 171053, 15 October 2007)
51

10-SC.
(UNFAIR COMPETITION)
In unfair competition cases, Rule 18, Section 5 provides that intent to
defraud or deceive the public shall be presumed:
(a) when the defendant passes off a product as his by using imitative
devices, signs or marks on the general appearance of the goods,
which misleads prospective purchasers into buying his
merchandise under the impression that they are buying that of his
competitors;
(b) when the defendant makes any false statement in the course
of trade to discredit the goods and business of another; or
(c) where the similarity in the appearance of the goods as packed and
offered for sale is striking.
52

10-SC.
(COPYRIGHT)
In copyright infringement cases, Rule 19, Section 1 provides that
copyright shall be presumed to subsist in the work or other subject
matter to which the action relates, and ownership thereof shall be
presumed to belong to complainant if he so claims through
affidavit evidence under Section 218 of the IP Code, unless the
defendant disputes it and shows or attaches proof to the contrary in
his answer to the complaint.
• A mere denial of the subsistence of copyright and/or ownership of

copyright based on lack of knowledge shall not be sufficient to
rebut the presumption. This presumption is based on Section 218.2
of the IP Code, which states:
53

10-SC.
(COPYRIGHT)
Section 218.2. In an action under this Chapter:
(a) Copyright shall be presumed to subsist in the work or

other subject matter to which the action relates if the defendant does
not put in issue the question whether copyright subsists in the work or
other subject matter; and
(b) Where the subsistence of the copyright is established,
the plaintiff shall be presumed to be the owner of the copyright if he
claims to be the owner of the copyright and the defendant does not put
in issue the question of his ownership.
54

10-SC.
(COPYRIGHT)
Section 218.2. In an action under this Chapter:
(c) Where the defendant, without good faith, puts in issue

the questions of whether copyright subsists in a work or other subject
matter to which the action relates, or the ownership of copyright in such
work or subject matter, thereby occasioning unnecessary costs or
delay in the proceedings, the court may direct that any costs to the
defendant in respect of the action shall not be allowed by him and that
any costs occasioned by the defendant to other parties shall be paid by
him to such other parties.
55

10-SC.
(COPYRIGHT)
• The affidavit evidence referred to in Rule 19, Section 1 pertains to the
affidavit executed in accordance with Section 218.1 of the IP Code,
which must contain the following allegations:
(a) At the time specified therein, copyright subsisted in the

work or other subject matter;
(b) He or the person named therein is the owner of the

copyright; and
56

10-SC.
(COPYRIGHT)
• The affidavit evidence referred to in Rule 19, Section 1 pertains to the
affidavit executed in accordance with Section 218.1 of the IP Code,
which must contain the following allegations:
(c) The copy of the work or other subject matter annexed

thereto is a true copy thereof, shall be admitted in evidence in any
proceedings for an offense under this Chapter and shall be prima facie
proof of the matters therein stated until the contrary is proved, and the
court before which such affidavit is produced shall assume that the
affidavit was made by or on behalf of the owner of the copyright.
57

10-SC.
(COPYRIGHT)
• Effect of registration and deposit. – Registration and deposit of a work

with the National Library or the IPO shall not carry with it the
presumption of ownership of the copyright by the registrant or
depositor, nor shall it be considered a condition sine qua non to a
claim of copyright infringement. (Rule 19, Section 2)
58

10-SC.
(COPYRIGHT)
• Presumption of authorship. – The natural person whose name is

indicated on a work in the usual manner as the author shall, in the
absence of proof to the contrary, be presumed to be the author of the
work. This presumption applies even if the name is a pseudonym,
provided the pseudonym leaves no doubt as to the identity of the
author. (1st par., Rule 19, Section 3)
• The person or body corporate whose name appears on an

audio-visual work in the usual manner shall, in the absence of proof to
the contrary, be presumed to be the maker of said work. (2nd par.,
Rule 19, Section 3)
59

10-SC.
(COPYRIGHT)
• International registration of works. – A statement concerning a work,

recorded in an international register in accordance with an
international treaty to which the Philippines is or may become a party,
shall be construed as true until the contrary is proved, except:
• a) Where the statement cannot be valid under Republic Act No.

8293, as amended, or any other law concerning intellectual
property; or
• b) Where the statement is contradicted by another statement

recorded in the international register. (Rule 19, Section 4)
60
Order of Destruction (Rule 20)

• Order of destruction. – At any time after the filing of the complaint or
information, the court, upon motion and after due notice and hearing
where the violation of the intellectual property rights of the owner is
established, may order the destruction of the seized infringing goods,
objects and devices, including but not limited to, sales invoices, other
documents evidencing sales, labels, signs, prints, packages,
wrappers, receptacles, and advertisements and the like used in the
infringing act.
• Such hearing shall be summary in nature with notice of hearing to the

defendant or accused to his last known address to afford the
defendant or accused the opportunity to oppose the motion. (Rule 20,
Section 1)
61

• Rule 20, Section 2:
• Conditions for order of destruction. – The court may only issue an
Order of Destruction, subject to the following conditions:
• a) An inventory and photographs of the seized infringing goods have

been taken before destruction at the place where the seized infringing
goods are stored;
• b) The taking of the inventory and photographs must be witnessed
and attested to by: (1) the accused or counsel or agent, or in their
absence, an officer of the barangay where the seized infringing goods
are stored; (2) the complainant, his representative or counsel; (3) the
public officer who seized the items or a representative of his office;
and (4) a court officer authorized by the court to supervise the
destruction of the seized infringing goods;
62

• Rule 20, Section 2:
• Conditions for order of destruction. – The court may only issue an
Order of Destruction, subject to the following conditions:
• c) Representative samples of the seized infringing goods have been

retained in a number and nature as to suffice for evidentiary
purposes;
• d) An inventory of the representative samples has been made by the
persons enumerated under (b) above;
• e) The court officer authorized to supervise the destruction has
submitted a report thereon, within five (5) days from the date of
destruction, to which is attached (i) the inventory and photographs of
the seized infringing goods and (ii) the inventory of the representative
samples; and
• f) The applicant has posted a bond in an amount fixed by the court
63
• Admissibility of representative samples. – Representative samples of

the goods, objects and devices referred to in this Rule, together with
the inventory and photographs of the same, shall be admissible in lieu
of the actual items. (Rule 20, Section 3)
64
ORDER OF TRIAL
UNDER A.M. No. 10-3-10-SC.
A. CIVIL CASES (Rules 2 to 9)
B. CRIMINAL CASES (Rules 10 to 15)

ORDER OF
TRIAL IN
CIVIL CASES
(Rules 2 to 9)
Proof required in IP civil cases:
Preponderance of evidence, which refers to evidence

which is of greater weight, or more convincing, that
which is offered in opposition to it; at bottom, it means
probability of truth.
ORDER OF
TRIAL IN
CRIMINAL
CASES (Rules
10 to 15)
Notes re IP criminal cases:
• Cases are filed against offending individuals or corporate owners,

directors or officers.
• Criminal prosecution is initiated by the filing of Complaint-Affidavits

(through the endorsement of NBI/CIDG) with the Deaprtment of
Justice (DOJ).
• The DOJ conducts a criminal investigation.
• If the DOJ finds probable cause, it will issue a resolution

recommending the filing of an information with the courts.
• Once the information is filed with the courts, the issuance and
service of warrants of arrest will follow.
Notes re IP criminal cases:
• After a successful enforcement action, the offending parties may

opt to settle the civil aspect of the case to prevent the filing of a
Complaint-Affidavit.
• Desistance vis-à-vis payment of damages.
• Settlement greatly relies on the IP owner’s terms.
• With a settlement, the IP owner no longer pursues criminal

prosecution.
• While criminal prosecution is the best deterrent to a repeated

infringement, it requires proof beyond reasonable doubt.
Proof required in IP criminal cases:
Proof beyond reasonable doubt — one which requires moral

certainty, a certainty that convinces and satisfies the reason and
conscience of those who are to act upon it -- before any person may
be deprived of his life, liberty, or even property. It does not mean
such a degree of proof as to exclude the possibility of error and
produce absolute certainty. Only moral certainty is required or that
degree of proof which produces conviction in an unprejudiced mind.
RAPE SHIELD RULE
Republic Act (R.A.) No. 8505,
otherwise known as the “Rape
Victim Assistance and Protection
Act of 1998”
Rape Shield Rule
• Section 6 of R.A. No. 8505 states:
In prosecutions for rape, evidence of complainant's past

sexual conduct, opinion thereof or of his/her reputation
shall not be admitted unless, and only to the extent that the
court finds, that such evidence is material and relevant to
the case.
Rape Shield Rule
• In American jurisdiction, courts in the past generally admitted

evidence of the victim’s character for chastity. In the 1970’s however,
nearly all jurisdictions enacted "rape shield" laws. The reforms range
from barring all evidence of the victim’s character for chastity to
merely requiring a preliminary hearing to screen out inadmissible
evidence on the issue. Federal Rule of Evidence 412 lies between
these extremes Reversing the traditional preference for proof of
character by reputation, it bars reputation and opinion evidence of the
victim’s past sexual conduct, but permits evidence of specific
incidents if certain substantive and procedural conditions are met. --
McCormick on Evidence, supra, Sec. 193, p. 822 (Footnote no. 43,
People v. Lee, G.R. No. 139070, 29 May 2002).
Rape Shield Rule
People v. Soriano, G.R. No. 114901, 29 May 1997
• Appellant lost no effort in describing Hilda as a woman of loose

morals. But this serves no useful purpose at all. For the character of a
rape victim will not disprove rape. There is absolutely no nexus
between the reputation of a rape victim and the odious deed
committed against her.
Rape Shield Rule
People v. Gonzaga, G.R. Nos. 135402-03, 7 September

2001
• Accused-appellants attempted to discredit the victim by presenting

testimonies that she was a prostitute. The Supreme Court ruled that
the victim's character in rape is immaterial. When a victim of rape
says she was violated, she says in effect all that is necessary to show
that rape has been inflicted on her, and so long as her testimony
meets the test of credibility, the accused may be convicted on the
basis thereof.
Rape Shield Rule
People v. Olimba, G.R. No. 185008, 22 September 2010
• Assuming for the sake of argument that BBB is a woman of loose

morals, she is not precluded from being a victim of rape. Even
prostitutes can be victims of rape. It bears stressing that in rape,
the moral character of the victim is immaterial, the essence of rape
being the act of having carnal knowledge of a woman without
her consent.
Thank you!

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JUDICIAL AFFIDAVIT

• This is without prejudice to the introduction of secondary

• (b) The name and address of the lawyer who conducts or

• (c) A statement that the witness is answering the questions

• (1) He faithfully recorded or caused to be recorded the questions he

• (b) A false attestation shall subject the lawyer mentioned to

• The adverse party may move to disqualify the witness or to strike

• (c) Since the documentary or object exhibits form part of the

• (2) Where the accused agrees to the use of judicial affidavits,

• If the accused desires to be heard on his defense after receipt of the

OCA CIRCULAR NOS. 05-2013 and 01-2014

1. Until 31 December 2014, the public prosecutors shall use,

OCA CIRCULAR NOS. 05-2013 and 01-2014

2. The modified compliance granted shall not apply where the

OCA CIRCULAR NOS. 05-2013 and 01-2014

IMPORTANT NOTE: If there is a private prosecutor, the

SUGGESTION: Have the complaint-affidavits, affidavits of witnesses,

In his article, “CREATING A MASTERPIECE: THE ART OF DIRECT

The JAR has taken out the drama of direct

There is nothing captivating in having a witness

1. The need to carefully prepare, think and strategize

2. The opportunity to practice the objections you learned

4. The immediate exchange of legal arguments

5. The thrill of having an objection overruled or

• While objections can be made before a witness testifies,

A.M. No. 10-3-10-SC, otherwise known

Common Rules on Admissibility

• Evidence of good faith. - In cases of patent infringement, trademark

Common Rules on Admissibility

• Deposition of foreign witness. – The deposition of any witness abroad

Presumptions favoring IP right holders under A.M. No. 10-3-

• a) In all cases, a letters patent issued by the Intellectual Property

• b) Moreover, letters patents issued by the Intellectual Property Office

Presumptions favoring IP right holders under A.M. No. 10-3-

Cresner Precision v. Court of Appeals (G.R. No. 118708, 2 February

• There is a presumption that the Philippine Patent Office has correctly

Presumptions favoring IP right holders under A.M. No. 10-3-

Del Rosario v. Court of Appeals (G.R. No. 115106, 15 March 1996):

Where petitioner introduces the patent in evidence, if it is in due form, it

Presumptions favoring IP right holders under A.M. No. 10-3-

• Rule 17, Section 3 also provides for the presumption of knowledge of

• N.B. This presumption of knowledge of existence of patent rights is

Presumptions favoring IP right holders under A.M. No. 10-3-

• For trademark infringement and unfair competition cases, Rule 18,

Presumptions favoring IP right holders under A.M. No. 10-3-

Rule 18, Section 4 provides that in determining whether one trademark

Presumptions favoring IP right holders under A.M. No. 10-3-

Presumptions favoring IP right holders under A.M. No. 10-3-

Presumptions favoring IP right holders under A.M. No. 10-3-

• “Colorable imitation” denotes such a close or ingenious imitation as to

Presumptions favoring IP right holders under A.M. No. 10-3-

Certificate of Registration of a Mark - Under Section 138 of the IP Code

(a) the validity of the registration;

Presumptions favoring IP right holders under A.M. No. 10-3-

• N.B. Registration of a trademark, by itself, is NOT a mode of

• The presumption brought about by the registration of mark is merely

Presumptions favoring IP right holders under A.M. No. 10-3-

• Registration merely creates a prima facie presumption of the validity

• It is not the application or registration of a trademark that vests

Presumptions favoring IP right holders under A.M. No. 10-3-

• The presumption of ownership accorded to a registrant must

Presumptions favoring IP right holders under A.M. No. 10-3-

Well-known mark. – In determining whether a mark is well-

Presumptions favoring IP right holders under A.M. No. 10-3-