Académique Documents
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XVI.
In intellectual property cases, fraudulent intent is not an element of the
cause of action except in cases involving: (1%)
damages is not brought within one year after the delivery of the goods or the
date when the goods should have been delivered. However, the COGSA does
not mention that an arrastre operator may invoke the prescriptive period of
one year, hence, it does not cover the arrastre operator. Thus, the action
filed by NA Insurance is not yet barred by prescription. (Insurance Company
of NA v. Asian Terminals Inc.)
XVIII.
Skechers Corporation sued Inter-Pacific for trademark infringement, claiming
that Inter-Pacificused Skechers registered "S" logo mark on Inter-Pacifics
shoe products without its consent. Skechers has registered the trademark
"SKECHERS" and the trademark "S" (with an oval design) with the Intellectual
Property Office (IPO).
In its complaint, Skechers points out the following similarities: the color
scheme of the blue, white and gray utilized by Skechers. Even the design
and "wave-like" pattern of the mid-sole and outer sole of Inter Pacifics shoes
are very similar to Skechers shoes, if not exact patterns thereof. On the side
of Inter-Pacifics shoes, near the upper part, appears the stylized "S" placed
in the exact location as that of the stylized "S" the Skechers shoes. On top of
the "tongue" of both shoes, appears the stylized "S" in practically the same
location and size.
In its defense, Inter-Pacific claims that under the Holistic Test, the following
dissimilarities are present: the mark "S" found in Strong shoes is not
enclosed in an "oval design"; the word "Strong" is conspicuously placed at
the backside and insoles; the hang tags labels attached to the shoes bear
the word "Strong" for Inter-Pacific and "Skechers U.S.A." for Skechers; and,
Strong shoes are modestly priced compared to the costs of Skechers shoes.
Under the foregoing circumstances, which is the proper test to be applied
Holistic or Dominancy Test? Decide.
Answer:
Dominancy Test should be applied. Under this test, the court focuses
on the similarity of the dominant features of the marks that might cause
confusion in the mind of the consumer. Duplication or imitation is not
necessary. Even accidental confusion may be cause for trademark
infringement. More consideration is given to the aural and visual impressions
created by the marks on the buyers and less weight is given to factors like
price, quality, sales outlets and market segments.
In a similar case, the SC found that the use of the S symbol
by Strong rubber shoes infringes on the registered Skechers trademark. It is
the most dominant feature of the mark -- one that catches the buyers eye
first. Even if the accused claims that there was a difference because the S
used by Skechers is found inside an oval, the fact that the accused used the
dominant S symbol already constitutes trademark infringement.
The features and overall design of the two products are so similar that
there is a high likelihood of confusion. Two products do not need to be
identical, they just need to be similar enough to confuse the ordinary buyer
in order to constitute trademark infringement. (Skechers, USA, Inc. v. Inter
Pacific Industrial Trading Corp. G.R. No. 164321, 2011)
XXIX.
KKis from Bangkok, Thailand. She studies medicine in the Pontifical
University of Santo Tomas (UST). She learned that the same foreign books
prescribed in UST are 40-50% cheaper in Bangkok. So she ordered 50 copies
of each book for herself and her classmates and sold the books at 20% less
than the price in the Philippines. XX, the exclusive licensed publisher of the
books in the Philippines, sued KK for copyright infringement. Decide. (4%)
III.
A. Discuss the three-fold character of a bill of lading. (3%)
1. as evidence of the existence of contract of carriage of cargo;
2. as commercial document whereby ownership may be transferred by
negotiation; and
3. as a receipt of cargo
B. What is a "Jason clause" in a charter party? (2%)
Provision in
a contract
of
carriage that
requires cargo owners to contribute in general average even for an 'incident'
caused by the carrier's negligence.
C. Are common carriers liable for injuries to passengers even if they
have observed ordinary diligence and care? Explain. (2%) YES.
V.
A. A standby letter of credit was issued by ABC Bank to secure the
obligation of X Company to Y Company. Under the standby letter of
credit, if there is failure on the part of X Company to perform its
obligation, then Y Company will submit to ABC Bank a certificate of
default (in the form prescribed under the standby letter of credit) and
ABC Bank will have to pay Y Company the defaulted amount.
Subsequently, Y Company submitted to ABC Bank a certificate of
default notwithstanding the fact that X Company was not in default.
Can ABC Bank refuse to honor the certificate of default? Explain. (3%)
B. Is the Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce applicable to commercial letters
of credit issued by a domestic bank even if not expressly mentioned in
such letters of credit? What is the basis for your answer? (3%)
XI.
A. Why is the Bangko Sentral ng Pilipinas considered a lender of last
resort? (2%)
B. Distinguish a conservator from a receiver of a bank. (2%)
C. What is insider trading? (2%)
Insider trading is commonly referred to as the use of confidential information
about a business gained through employment in a company or a stock brokerage, to buy
and/or sell stocks and bonds based on the private knowledge that the value will go up or
down.
XII.