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FREDCO MANUFACTURING vs HARVARD (2011) > The Director General ruled that more than the use of the

r General ruled that more than the use of the trademark in the
Philippines, the applicant must be the owner of the mark sought to be
registered. The Director General ruled that the right to register a trademark
FACTS: is based on ownership and when the applicant is not the owner, he has no
right to register the mark. The Director General noted that the mark covered
> Petitioner Fredco Manufacturing Corporation (Fredco), a corporation by Harvard Universitys Registration No. 56561 is not only the word Harvard
organized and existing under the laws of the Philippines, filed a Petition for but also the logo, emblem or symbol of Harvard University. The Director
Cancellation of Registration No. 56561 before the Bureau of Legal Affairs of General ruled that Fredco failed to explain how its predecessor New York
the Intellectual Property Office (IPO) against respondents President and Garments came up with the mark Harvard. In addition, there was no
Fellows of Harvard College (Harvard University), a corporation organized evidence that Fredco or New York Garments was licensed or authorized by
and existing under the laws of Massachusetts, United States of America. Harvard University to use its name in commerce or for any other use.
> Fredco alleged that Registration No. 56561 was issued to Harvard > Court of Appeals affirmed the decision of the Office of the Director General
University on 25 November 1993 for the mark Harvard Veritas Shield of the IPO.
Symbol for decals, tote bags, serving trays, sweatshirts, t-shirts, hats and
flying discs under Classes 16, 18, 21, 25 and 28 of the Nice International
Classification of Goods and Services. Fredco alleged that the mark Harvard ISSUE:
for t-shirts, polo shirts, sandos, briefs, jackets and slacks was first used in
the Philippines on 2 January 1982 by New York Garments Manufacturing &
Export Co., Inc. (New York Garments), a domestic corporation and Fredcos Whether or not the Court of Appeals committed a reversible error in
predecessor-in-interest. On 24 January 1985, New York Garments filed for affirming the decision of the Office of the Director General of the IPO?
trademark registration of the mark Harvard for goods under Class 25. The
application matured into a registration and a Certificate of Registration was
issued on 12 December 1988, with a 20-year term subject to renewal at the RULING:
end of the term. The registration was later assigned to Romeo Chuateco, a
member of the family that owned New York Garments. NO. There is no dispute that the mark Harvard used by Fredco is
> Fredco alleged that at the time of issuance of Registration No. 56561 to the same as the mark Harvard in the Harvard Veritas Shield Symbol of
Harvard University, New York Garments had already registered the mark Harvard University. It is also not disputed that Harvard University was
Harvard for goods under Class 25. Fredco alleged that the registration was named Harvard College in 1639 and that then, as now, Harvard University is
cancelled on 30 July 1998 when New York Garments inadvertently failed to located in Cambridge, Massachusetts, U.S.A. It is also unrefuted that
file an affidavit of use/non-use on the fifth anniversary of the registration but Harvard University has been using the mark Harvard in commerce since
the right to the mark Harvard remained with its predecessor New York 1872. It is also established that Harvard University has been using the
Garments and now with Fredco. marks Harvard and Harvard Veritas Shield Symbol for Class 25 goods in the
> Harvard University, on the other hand, alleged that it is the lawful owner of United States since 1953. Further, there is no dispute that Harvard
the name and mark Harvard in numerous countries worldwide, including the University has registered the name and mark Harvard in at least 50
Philippines. countries.
> The name and mark Harvard was adopted in 1639 as the name of Harvard
College of Cambridge, Massachusetts, U.S.A. The name and mark Harvard On the other hand, Fredcos predecessor-in-interest, New York Garments,
was allegedly used in commerce as early as 1872. Harvard University is started using the mark Harvard in the Philippines only in 1982. New York
over 350 years old and is a highly regarded institution of higher learning in Garments filed an application with the Philippine Patent Office in 1985 to
the United States and throughout the world. register the mark Harvard, which application was approved in 1988. Fredco
> Director Estrellita Beltran-Abelardo of the Bureau of Legal Affairs, IPO insists that the date of actual use in the Philippines should prevail on the
cancelled Harvard Universitys registration of the mark Harvard under Class issue of who has the better right to register the marks.
25.
> Office of the Director General, IPO reversed the decision of the Bureau of Under Section 2 of Republic Act No. 166, as amended (R.A. No. 166),
Legal Affairs, IPO. before a trademark can be registered, it must have been actually used in

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commerce for not less than two months in the Philippines prior to the filing of
an application for its registration. While Harvard University had actual prior Indisputably, Fredco does not have any affiliation or connection with Harvard
use of its marks abroad for a long time, it did not have actual prior use in the University, or even with Cambridge, Massachusetts. Fredco or its
Philippines of the mark Harvard Veritas Shield Symbol before its application predecessor New York Garments was not established in 1936, or in the
for registration of the mark Harvard with the then Philippine Patents Office. U.S.A. as indicated by Fredco in its oblong logo. Fredco offered no
However, Harvard Universitys registration of the name Harvard is based on explanation to the Court of Appeals or to the IPO why it used the mark
home registration which is allowed under Section 37 of R.A. No. 166. As Harvard on its oblong logo with the words Cambridge, Massachusetts,
pointed out by Harvard University in its Comment: Established in 1936, and USA. Fredco now claims before this Court that it
used these words to evoke a lifestyle or suggest a desirable aura of
Although Section 2 of the Trademark law (R.A. 166) requires for the petitioners clothing lines. Fredcos belated justification merely confirms that it
registration of trademark that the applicant thereof must prove that the same sought to connect or associate its products with Harvard University, riding on
has been actually in use in commerce or services for not less than two (2) the prestige and popularity of Harvard University, and thus appropriating part
months in the Philippines before the application for registration is filed, of Harvard Universitys goodwill without the latters consent.
where the trademark sought to be registered has already been registered in
a foreign country that is a member of the Paris Convention, the requirement Section 4(a) of R.A. No. 166 is identical to Section 2(a) of the Lanham Act,
of proof of use in the commerce in the Philippines for the said period is not the trademark law of the United States. These provisions are intended to
necessary. An applicant for registration based on home certificate of protect the right of publicity of famous individuals and institutions from
registration need not even have used the mark or trade name in this country. commercial exploitation of their goodwill by others. What Fredco has done in
using the mark Harvard and the words Cambridge, Massachusetts, USA to
Indeed, in its Petition for Cancellation of Registration No. 56561, Fredco evoke a desirable aura to its products is precisely to exploit commercially the
alleged that Harvard Universitys registration is based on home registration goodwill of Harvard University without the latters consent. This is a clear
for the mark Harvard Veritas Shield for Class 25. violation of Section 4(a) of R.A. No. 166. Under Section 17(c) of R.A. No.
166, such violation is a ground for cancellation of Fredcos registration of the
In any event, under Section 239.2 of Republic Act No. 8293 (R.A. No. 8293) mark Harvard because the registration was obtained in violation of Section 4
[m]arks registered under Republic Act No. 166 shall remain in force but shall of R.A. No. 166.
be deemed to have been granted under this Act x x x, which does not
require actual prior use of the mark in the Philippines. Since the mark Second, the Philippines and the United States of America are both
Harvard Veritas Shield Symbol is now deemed granted under R.A. No. 8293, signatories to the Paris Convention for the Protection of Industrial Property
any alleged defect arising from the absence of actual prior use in the (Paris Convention). The Philippines became a signatory to the Paris
Philippines has been cured by Section 239.2. In addition, Fredcos Convention on 27 September 1965.
registration was already cancelled on 30 July 1998 when it failed to file the
required affidavit of use/non-use for the fifth anniversary of the marks Thus, this Court has ruled that the Philippines is obligated to assure
registration. Hence, at the time of Fredcos filing of the Petition for nationals of countries of the Paris Convention that they are afforded an
Cancellation before the Bureau of Legal Affairs of the IPO, Fredco was no effective protection against violation of their intellectual property rights in the
longer the registrant or presumptive owner of the mark Harvard. Philippines in the same way that their own countries are obligated to accord
similar protection to Philippine nationals.
Fredcos registration of the mark Harvard should not have been allowed
because Section 4(a) of R.A. No. 166 prohibits the registration of a mark Thus, under Philippine law, a trade name of a national of a State that is a
which may disparage or falsely suggest a connection with persons, living or party to the Paris Convention, whether or not the trade name forms part of a
dead, institutions, beliefs x x x. Section 4(a) of R.A. No. 166. trademark, is protected without the obligation of filing or registration.

Fredcos use of the mark Harvard, coupled with its claimed origin in Harvard is the trade name of the world famous Harvard University, and it is
Cambridge, Massachusetts, obviously suggests a false connection with also a trademark of Harvard University. Under Article 8 of the Paris
Harvard University. On this ground alone, Fredcos registration of the mark Convention, as well as Section 37 of R.A. No. 166, Harvard University is
Harvard should have been disallowed. entitled to protection in the Philippines of its trade name Harvard even

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without registration of such trade name in the Philippines. This means that
no educational entity in the Philippines can use the trade name Harvard TANDUAY DISTILLERS vs. GINEBRA SAN MIGUEL,
without the consent of Harvard University. Likewise, no entity in the
Philippines can claim, expressly or impliedly through the use of the name INC (2009)
and mark Harvard, that its products or services are authorized, approved, or
licensed by, or sourced from, Harvard University without the latters consent. FACTS:

Indeed, Section 123.1(e) of R.A. No. 8293 now categorically states that a > Tanduay, a corporation organized and existing under Philippine laws, has
mark which is considered by the competent authority of the Philippines to be been engaged in the liquor business since 1854. In 2002, Tanduay
well-known internationally and in the Philippines, whether or not it is developed a new gin product distinguished by its sweet smell, smooth taste,
registered here, cannot be registered by another in the Philippines. Section and affordable price. Tanduay claims that it engaged the services of an
123.1(e) does not require that the well-known mark be used in commerce in advertising firm to develop a brand name and a label for its new gin product.
the Philippines but only that it be well-known in the Philippines. Moreover, The brand name eventually chosen was Ginebra Kapitan with the
Rule 102 of the Rules and Regulations on Trademarks, Service Marks, representation of a revolutionary Kapitan on horseback as the dominant
Trade Names and Marked or Stamped Containers, which implement R.A. feature of its label. Tanduay points out that the label design of Ginebra
No. 8293. Kapitan in terms of color scheme, size and arrangement of text, and other
label features were precisely selected to distinguish it from the leading gin
Since any combination of the foregoing criteria is sufficient to determine that brand in the Philippine market, Ginebra San Miguel. Tanduay also states
a mark is well-known, it is clearly not necessary that the mark be used in that the Ginebra Kapitan bottle uses a resealable twist cap to distinguish it
commerce in the Philippines. Thus, while under the territoriality principle a from Ginebra San Miguel and other local gin products with bottles which use
mark must be used in commerce in the Philippines to be entitled to the crown cap or tansan.
protection, internationally well-known marks are the exceptions to this rule. > AFTER FILING THE TRADEMARK APPLICATION FOR GINEBRA
KAPITAN WITH THE INTELLECTUAL PROPERTY OFFICE (IPO) AND
As such, even before Harvard University applied for registration of the mark AFTER SECURING THE APPROVAL OF THE PERMIT TO
Harvard in the Philippines, the mark was already protected under Article 6 MANUFACTURE AND SELL GINEBRA KAPITAN FROM THE BUREAU OF
bis and Article 8 of the Paris Convention. Again, even without applying the INTERNAL REVENUE, TANDUAY BEGAN SELLING GINEBRA KAPITAN IN
Paris Convention, Harvard University can invoke Section 4(a) of R.A. No. NORTHERN AND SOUTHERN LUZON AREAS IN MAY 2003. IN JUNE
166 which prohibits the registration of a mark which may disparage or falsely 2003, GINEBRA KAPITAN WAS ALSO LAUNCHED IN METRO MANILA.
suggest a connection with persons, living or dead, institutions, beliefs x x x. > TANDUAY RECEIVED A LETTER FROM SAN MIGUELS COUNSEL. THE
LETTER INFORMED TANDUAY TO IMMEDIATELY CEASE AND DESIST
FROM USING THE MARK GINEBRA AND FROM COMMITTING ACTS
THAT VIOLATE SAN MIGUELS INTELLECTUAL PROPERTY RIGHTS.
> SAN MIGUEL FILED A COMPLAINT FOR TRADEMARK
INFRINGEMENT, UNFAIR COMPETITION AND DAMAGES, WITH
APPLICATIONS FOR ISSUANCE OF TRO AND WRIT OF PRELIMINARY
INJUNCTION AGAINST TANDUAY BEFORE THE RTC.
> THE TRIAL COURT ISSUED A TRO PROHIBITING TANDUAY FROM
MANUFACTURING, SELLING AND ADVERTISING GINEBRA KAPITAN.
> TRIAL COURT GRANTED THE APPLICATION FOR A WRIT OF
PRELIMINARY INJUNCTION. THE TRIAL COURT RULED THAT WHILE A
CORPORATION ACQUIRES A TRADE NAME FOR ITS PRODUCT BY
CHOICE, IT SHOULD NOT SELECT A NAME THAT IS CONFUSINGLY
SIMILAR TO ANY OTHER NAME ALREADY PROTECTED BY LAW OR IS
PATENTLY DECEPTIVE, CONFUSING, OR CONTRARY TO EXISTING
LAW.

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> THE TRIAL COURT NOTED THAT WHILE THE SUBJECT
TRADEMARKS ARE NOT IDENTICAL, IT IS OBVIOUSLY CLEAR THAT Before an injunctive writ is issued, it is essential that the following requisites
THE WORD GINEBRA IS THE DOMINANT FEATURE IN THE are present: (1) the existence of a right to be protected and (2) the acts
TRADEMARKS. THE TRIAL COURT STATED THAT THERE IS A STRONG against which the injunction is directed are violative of the right. The onus
INDICATION THAT CONFUSION IS LIKELY TO OCCUR SINCE ONE probandi is on the movant to show that the invasion of the right sought to be
WOULD INEVITABLY BE LED TO CONCLUDE THAT BOTH PRODUCTS protected is material and substantial, that the right of the movant is clear and
ARE AFFILIATED WITH SAN MIGUEL DUE TO THE DISTINCTIVE MARK unmistakable, and that there is an urgent and paramount necessity for the
GINEBRA WHICH IS READILY IDENTIFIED WITH SAN MIGUEL. writ to prevent serious damage.[35]

The CA upheld the trial courts ruling that San Miguel has sufficiently
ISSUE: established its right to prior use and registration of the word Ginebra as a
dominant feature of its trademark. The CA ruled that based on San Miguels
Whether or not San Miguel is entitled to the writ of preliminary extensive, continuous, and substantially exclusive use of the word Ginebra,
injunction granted by the trial court as affirmed by the CA? it has become distinctive of San Miguels gin products; thus, a clear and
unmistakable right was shown.
RULING: NO.
We hold that the CA committed a reversible error. The issue in the main
Clear and Unmistakable Right case is San Miguels right to the exclusive use of the mark Ginebra. The two
trademarks Ginebra San Miguel and Ginebra Kapitan apparently differ when
SECTION 1, RULE 58 OF THE RULES OF COURT DEFINES A taken as a whole, but according to San Miguel, Tanduay appropriates the
PRELIMINARY INJUNCTION AS AN ORDER GRANTED AT ANY STAGE word Ginebra which is a dominant feature of San Miguels mark.
OF A PROCEEDING PRIOR TO THE JUDGMENT OR FINAL ORDER,
REQUIRING A PARTY OR A COURT, AGENCY, OR A PERSON TO It is not evident whether San Miguel has the right to prevent other business
REFRAIN FROM A PARTICULAR ACT OR ACTS. entities from using the word Ginebra. It is not settled (1) whether Ginebra is
indeed the dominant feature of the trademarks, (2) whether it is a generic
A PRELIMINARY INJUNCTION IS A PROVISIONAL REMEDY FOR THE word that as a matter of law cannot be appropriated, or (3) whether it is
PROTECTION OF SUBSTANTIVE RIGHTS AND INTERESTS. IT IS NOT A merely a descriptive word that may be appropriated based on the fact that it
CAUSE OF ACTION IN ITSELF BUT MERELY AN ADJUNCT TO THE MAIN has acquired a secondary meaning.
CASE. ITS OBJECTIVE IS TO PREVENT A THREATENED OR
CONTINUOUS IRREPARABLE INJURY TO SOME OF THE PARTIES The issue that must be resolved by the trial court is whether a word like
BEFORE THEIR CLAIMS CAN BE THOROUGHLY INVESTIGATED AND Ginebra can acquire a secondary meaning for gin products so as to prohibit
ADVISEDLY ADJUDICATED. IT IS RESORTED TO ONLY WHEN THERE IS the use of the word Ginebra by other gin manufacturers or sellers. This boils
A PRESSING NEED TO AVOID INJURIOUS CONSEQUENCES WHICH down to whether the word Ginebra is a generic mark that is incapable of
CANNOT BE REMEDIED UNDER ANY STANDARD COMPENSATION.[34] appropriation by gin manufacturers.

Section 3, Rule 58 of the Rules of Court provides: In this case, a cloud of doubt exists over San Miguels exclusive right
relating to the word Ginebra. San Miguels claim to the exclusive use of the
SECTION 3. GROUNDS FOR ISSUANCE OF A WRIT OF PRELIMINARY word Ginebra is clearly still in dispute because of Tanduays claim that it has,
INJUNCTION.A PRELIMINARY INJUNCTION MAY BE GRANTED WHEN as others have, also registered the word Ginebra for its gin products. This
IT IS ESTABLISHED: issue can be resolved only after a full-blown trial.

(a) That the applicant is entitled to the relief demanded, and the whole or We find that San Miguels right to injunctive relief has not been clearly and
part of such relief consists in restraining the commission or continuance of unmistakably demonstrated. The right to the exclusive use of the word
the act or acts complained of, or in requiring the performance of an act or Ginebra has yet to be determined in the main case. The trial courts grant of
acts, either for a limited period or perpetually; the writ of preliminary injunction in favor of San Miguel, despite the lack of a

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clear and unmistakable right on its part, constitutes grave abuse of
discretion amounting to lack of jurisdiction. FACTS:

WE BELIEVE THAT THE ISSUED WRIT OF PRELIMINARY INJUNCTION, > Cruz was Punong Barangay of Pandacan, Manila, within the vicinity of her
IF ALLOWED, DISPOSES OF THE CASE ON THE MERITS AS IT barangay, she allegedly confronted persons playing basketball with the
EFFECTIVELY ENJOINS THE USE OF THE WORD GINEBRA WITHOUT following statements:
THE BENEFIT OF A FULL-BLOWN TRIAL. IN RIVAS V. SECURITIES AND Bakit nakabukas ang (basketball) court? Wala kayong karapatang maglaro
EXCHANGE COMMISSION, WE RULED THAT COURTS SHOULD AVOID sa court na 'to, barangay namin ito! xxx xxx xxx Wala kayong magagawa.
ISSUING A WRIT OF PRELIMINARY INJUNCTION WHICH WOULD IN Ako ang chairman dito. Mga walanghiya kayo, patay gutom! Hindi ako
EFFECT DISPOSE OF THE MAIN CASE WITHOUT TRIAL. THE natatakot! Kaya kong panagutan lahat!
ISSUANCE OF THE WRIT OF PRELIMINARY INJUNCTION HAD THE >Then, she allegedly gave an order to the other petitioner, Barangay Tanod,
EFFECT OF GRANTING THE MAIN PRAYER OF THE COMPLAINT SUCH to destroy the basketball ring by cutting it up with a hacksaw which Dela
THAT THERE IS PRACTICALLY NOTHING LEFT FOR THE TRIAL COURT Cruz promptly complied with, thus, rendering the said basketball court
TO TRY EXCEPT THE PLAINTIFFS CLAIM FOR DAMAGES. unusable.
> The acts of petitioners prompted the filing of a Complaint (for Malicious
x x x a writ of injunction should never issue when an action for damages Mischief, Grave Misconduct, Conduct Prejudicial to the Best Interest of the
would adequately compensate the injuries caused. The very foundation of Service and Abuse of Authority) before the Prosecutor's Office and the Office
the jurisdiction to issue the writ of injunction rests in the probability of of the Ombudsman by the group that claims to be the basketball court's
irreparable injury, inadequacy of pecuniary compensation and the prevention owners, herein respondents Pandacan Hiker's Club, Inc. (PHC).
of the multiplicity of suits, and where facts are not shown to bring the case > Cruz alleged that the basketball court affected the peace in the barangay
within these conditions, the relief of injunction should be refused. and was the subject of many complaints from residents asking for its
closure. She alleged that the playing court blocked jeepneys from passing
Based on the affidavits and market survey report submitted during the through and was the site of rampant bettings and fights involving persons
injunction hearings, San Miguel has failed to prove the probability of from within and outside the barangays. She claimed that innocent persons
irreparable injury which it will stand to suffer if the sale of Ginebra Kapitan is have been hurt and property had been damaged by such armed
not enjoined. San Miguel has not presented proof of damages incapable of confrontations, which often involved the throwing of rocks and improvised
pecuniary estimation. At most, San Miguel only claims that it has invested "molotov" bombs. She also averred that noise from the games caused lack
hundreds of millions over a period of 170 years to establish goodwill and of sleep among some residents and that the place's frequent visitors used
reputation now being enjoyed by the Ginebra San Miguel mark such that the the community's fences as places to urinate.
full extent of the damage cannot be measured with reasonable accuracy. > The Ombudsman found that the act of destroying the basketball ring was
Without the submission of proof that the damage is irreparable and only motivated by Cruz and Dela Cruz performing their sworn duty, as
incapable of pecuniary estimation, San Miguels claim cannot be the basis defined in the LGC. It found the act to be a mere response to the clamor of
for a valid writ of preliminary injunction. constituents. The office found that though the cutting of the ring was
"drastic," it was done by the barangay officials within their lawful duties, as
the act was only the result of the unauthorized removal of and failure to
return the steel bar and padlock that were earlier placed thereon.
> However, CA held Cruz to be without the power to declare a thing a
nuisance unless it is a nuisance per se. It declared the subject basketball
ring as not such a nuisance and, thus, not subject to summary abatement.
The court added that even if the same was to be considered a nuisance per
accidens, the only way to establish it as such is after a hearing conducted
for that purpose.

CRUZ vs PANDACAN HIKERS CLUB (2008) RULING:

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For these reasons, in the case at bar, We agree with the appellate court that foregoing definition" which, in jurisprudence, is one which "violates only
the petitioners actions, though well-intentioned, were improper and done in private rights and produces damages to but one or a few persons."
excess of what was required by the situation and fell short of the
aforementioned standards of behavior for public officials. A nuisance may also be classified as to whether it is susceptible to a legal
summary abatement, in which case, it may either be: (a) a nuisance per se,
It is clear from the records that petitioners indeed cut or sawed in half the when it affects the immediate safety of persons and property, which may be
subject basketball ring, which resulted in the destruction of the said summarily abated under the undefined law of necessity; or, (b) a nuisance
equipment and rendered it completely unusable. Petitioners also moved per accidens, which "depends upon certain conditions and circumstances,
instantaneously and did not deliberate nor consult with the Sangguniang and its existence being a question of fact, it cannot be abated without due
Barangay prior to committing the subject acts; neither did they involve any hearing thereon in a tribunal authorized to decide whether such a thing does
police or law enforcement agent in their actions. They acted while tempers in law constitute a nuisance;" it may only be so proven in a hearing
were running high as petitioner Cruz, the Barangay Chairperson, became conducted for that purpose and may not be summarily abated without
incensed at the removal of the steel bar and padlock that was earlier used to judicial intervention.
close access to the ring and at the inability or refusal of respondents' group
to return the said steel bar and padlock to her as she had ordered. In the case at bar, none of the tribunals below made a factual finding that the
basketball ring was a nuisance per se that is susceptible to a summary
The destructive acts of petitioners, however, find no legal sanction. This abatement. And based on what appears in the records, it can be held, at
Court has ruled time and again that no public official is above the law. The most, as a mere nuisance per accidens, for it does not pose an immediate
Court of Appeals correctly ruled that although petitioners claim to have effect upon the safety of persons and property, the definition of a nuisance
merely performed an abatement of a public nuisance, the same was done per se. A basketball ring, by itself, poses no immediate harm or danger to
summarily while failing to follow the proper procedure therefor and for which, anyone but is merely an object of recreation. Neither is it, by its nature,
petitioners must be held administratively liable. injurious to rights of property, of health or of comfort of the community and,
thus, it may not be abated as a nuisance without the benefit of a judicial
Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it hearing.
may not be summarily abated.
But even if it is assumed, ex gratia argumenti, that the basketball ring was a
There is a nuisance when there is "any act, omission, establishment, nuisance per se, but without posing any immediate harm or threat that
business, condition of property, or anything else which: (1) injures or required instantaneous action, the destruction or abatement performed by
endangers the health or safety of others; or (2) annoys or offends the petitioners failed to observe the proper procedure for such an action which
senses; or (3) shocks, defies or disregards decency or morality; or (4) puts the said act into legal question.
obstructs or interferes with the free passage of any public highway or street,
or any body of water; or (5) hinders or impairs the use of property." But other Under Article 700 of the Civil Code, the abatement, including one without
than the statutory definition, jurisprudence recognizes that the term judicial proceedings, of a public nuisance is the responsibility of the district
"nuisance" is so comprehensive that it has been applied to almost all ways health officer. Under Article 702 of the Code, the district health officer is also
which have interfered with the rights of the citizens, either in person, the official who shall determine whether or not abatement, without judicial
property, the enjoyment of his property, or his comfort. proceedings, is the best remedy against a public nuisance. The two articles
do not mention that the chief executive of the local government, like the
A nuisance is classified in two ways: (1) according to the object it affects; or Punong Barangay, is authorized as the official who can determine the
(2) according to its susceptibility to summary abatement.1wphi1 propriety of a summary abatement.

As for a nuisance classified according to the object or objects that it affects, Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz,
a nuisance may either be: (a) a public nuisance, i.e., one which "affects a as Barangay Tanod, claim to have acted in their official capacities in the
community or neighborhood or any considerable number of persons, exercise of their powers under the general welfare clause of the Local
although the extent of the annoyance, danger or damage upon individuals Government Code. However, petitioners could cite no barangay nor city
may be unequal"; or (b) a private nuisance, or one "that is not included in the ordinance that would have justified their summary abatement through the

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exercise of police powers found in the said clause. No barangay nor city We now come to the liability of petitioner Mercury Drug as employer of Del
ordinance was violated; neither was there one which specifically declared Rosario. Articles 2176 and 2180 of the Civil Code provide:
the said basketball ring as a nuisance per se that may be summarily abated.
Though it has been held that a nuisance per se may be abated via an Art. 2176. Whoever by act or omission causes damage to another, there
ordinance, without judicial proceedings, We add that, in the case at bar, being fault or negligence, is obliged to pay for the damage done. Such fault
petitioners were required to justify their abatement via such an ordinance or negligence, if there is no pre-existing contractual relation between the
because the power they claim to have exercised the police power under parties, is called a quasi-delict and is governed by the provisions of this
the general welfare clause is a power exercised by the government mainly Chapter.
through its legislative, and not the executive, branch. The prevailing
jurisprudence is that local government units such as the provinces, cities, Art. 2180. The obligation imposed by article 2176 is demandable not only for
municipalities and barangays exercise police power through their respective ones own acts or omissions, but also for those of persons for whom one is
legislative bodies. responsible.

The liability of the employer under Art. 2180 of the Civil Code is direct or
immediate. It is not conditioned on a prior recourse against the negligent
employee, or a prior showing of insolvency of such employee. It is also joint
MERCURY DRUG vs HUANG (2007) and solidary with the employee.

FACTS: To be relieved of liability, petitioner Mercury Drug should show that it


exercised the diligence of a good father of a family, both in the selection of
> Petitioner Mercury Drug is the registered owner of a six-wheeler 1990 the employee and in the supervision of the performance of his duties. Thus,
Mitsubishi Truck employed petitioner Rosario as driver. Respondent spouses in the selection of its prospective employees, the employer is required to
Richard and Carmen Huang are the parents of respondent Stephen Huang examine them as to their qualifications, experience, and service records.
and own the red 1991 Toyota Corolla GLI Sedan. With respect to the supervision of its employees, the employer should
> These two vehicles figured in a road accident. formulate standard operating procedures, monitor their implementation, and
> Respondents fault petitioner Del Rosario for committing gross negligence impose disciplinary measures for their breach. To establish compliance with
and reckless imprudence while driving, and petitioner Mercury Drug for these requirements, employers must submit concrete proof, including
failing to exercise the diligence of a good father of a family in the selection documentary evidence.
and supervision of its driver.
> In contrast, petitioners allege that the immediate and proximate cause of In the instant case, petitioner Mercury Drug presented testimonial evidence
the accident was respondent Stephen Huangs recklessness. on its hiring procedure. No tests were conducted on the motor skills
> The trial court, in its Decision dated September 29, 2004, found petitioners development, perceptual speed, visual attention, depth visualization, eye
Mercury Drug and Del Rosario jointly and severally liable to pay respondents and hand coordination and steadiness of petitioner Del Rosario. No NBI and
actual, compensatory, moral and exemplary damages, attorneys fees, and police clearances were also presented.
litigation expenses. CA affirmed
Petitioner Mercury Drug likewise failed to show that it exercised due
diligence on the supervision and discipline over its employees. In fact, on the
RULING: day of the accident, petitioner Del Rosario was driving without a license. He
was holding a TVR for reckless driving. He testified that he reported the
The evidence proves petitioner Del Rosarios negligence as the direct and incident to his superior, but nothing was done about it. He was not
proximate cause of the injuries suffered by respondent Stephen Huang. suspended or reprimanded. No disciplinary action whatsoever was taken
Petitioner Del Rosario failed to do what a reasonable and prudent man against petitioner Del Rosario. We therefore affirm the finding that petitioner
would have done under the circumstances. Mercury Drug has failed to discharge its burden of proving that it exercised
due diligence in the selection and supervision of its employee, petitioner Del
Rosario.

7
FACTS:
With regard to actual damages, Art. 2199 of the Civil Code provides that
[E]xcept as provided by law or by stipulation one is entitled to an adequate > Respondent Jose A. Espinas was driving his car, reaching the intersection,
compensation only for such pecuniary loss suffered by him as he has duly Espinas stopped his car. When the signal light turned green, he proceeded
proved x x x. In the instant case, we uphold the finding that the actual to cross the intersection. He was already in the middle of the intersection
damages claimed by respondents were supported by receipts. when another car, traversing, suddenly hit and bumped his car. As a result of
the impact, Espinas car turned clockwise. The other car escaped from the
We likewise uphold the award of moral and exemplary damages and scene of the incident, but Espinas was able to get its plate number.
attorneys fees. > Learned that the owner of the other car is Filcar.
> Espinas sent several letters to Filcar and to its President and General
The award of moral damages is aimed at a restoration, within the limits of Manager Carmen Flor, demanding payment for the damages sustained by
the possible, of the spiritual status quo ante. Moral damages are designed to his car.
compensate and alleviate in some way the physical suffering, mental > Filcar denied any liability to Espinas and claimed that the incident was not
anguish, fright, serious anxiety, besmirched reputation, wounded feelings, due to its fault or negligence since Floresca was not its employee but that of
moral shock, social humiliation, and similar injury unjustly caused a person. Atty. Flor. Filcar and Carmen Flor both said that they always exercised the
Although incapable of pecuniary computation, they must be proportionate to due diligence required of a good father of a family in leasing or assigning
the suffering inflicted. The amount of the award bears no relation their vehicles to third parties.
whatsoever with the wealth or means of the offender.
ISSUE:
On the matter of exemplary damages, Art. 2231 of the Civil Code provides
that in cases of quasi-delicts, exemplary damages may be granted if the Whether or not Filcar, as registered owner of the motor vehicle
defendant acted with gross negligence. The records show that at the time of which figured in an accident, may be held liable for the damages caused to
the accident, petitioner Del Rosario was driving without a license because Espinas?
he was previously ticketed for reckless driving. The evidence also shows
that he failed to step on his brakes immediately after the impact. Had RULING:
petitioner Del Rosario done so, the injuries which respondent Stephen
sustained could have been greatly reduced. Wanton acts such as that YES. Filcar, as registered owner, is deemed the employer of the
committed by petitioner Del Rosario need be suppressed; and employers driver, Floresca, and is thus vicariously liable under Article 2176 in relation
like petitioner Mercury Drug should be more circumspect in the observance with Article 2180 of the Civil Code.
of due diligence in the selection and supervision of their employees. The
award of exemplary damages in favor of the respondents is therefore It is undisputed that Filcar is the registered owner of the motor vehicle which
justified. hit and caused damage to Espinas car; and it is on the basis of this fact that
we hold Filcar primarily and directly liable to Espinas for damages.
With the award of exemplary damages, we also affirm the grant of attorneys
fees to respondents. In addition, attorneys fees may be granted when a As a general rule, one is only responsible for his own act or omission. Thus,
party is compelled to litigate or incur expenses to protect his interest by a person will generally be held liable only for the torts committed by himself
reason of an unjustified act of the other party. and not by another. This general rule is laid down in Article 2176 of the Civil
Code, which provides to wit:

Article 2176. Whoever by act or omission causes damage to another, there


being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
FILCAR TRANSPORT SERVICES vs. ESPINAS parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

8
Based on the above-cited article, the obligation to indemnify another for The registered owner of the motor vehicle is the employer of the negligent
damage caused by ones act or omission is imposed upon the tortfeasor driver, and the actual employer is considered merely as an agent of such
himself, i.e., the person who committed the negligent act or omission. The owner.
law, however, provides for exceptions when it makes certain persons liable
for the act or omission of another. The main aim of motor vehicle registration is to identify the owner so that if
any accident happens, or that any damage or injury is caused by the vehicle
One exception is an employer who is made vicariously liable for the tort on the public highways, responsibility therefor can be fixed on a definite
committed by his employee. Article 2180 of the Civil Code states: individual, the registered owner.

Article 2180. The obligation imposed by Article 2176 is demandable not only Thus, whether there is an employer-employee relationship between the
for ones own acts or omissions, but also for those of persons for whom one registered owner and the driver is irrelevant in determining the liability of the
is responsible. registered owner who the law holds primarily and directly responsible for any
accident, injury or death caused by the operation of the vehicle in the streets
Employers shall be liable for the damages caused by their employees and and highways.
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry. The general public policy involved in motor vehicle registration is the
protection of innocent third persons who may have no means of identifying
The responsibility treated of in this article shall cease when the persons public road malefactors and, therefore, would find it difficult if not impossible
herein mentioned prove that they observed all the diligence of a good father to seek redress for damages they may sustain in accidents resulting in
of a family to prevent damage. deaths, injuries and other damages; by fixing the person held primarily and
directly liable for the damages sustained by victims of road mishaps, the law
Under Article 2176, in relation with Article 2180, of the Civil Code, an action ensures that relief will always be available to them.
predicated on an employees act or omission may be instituted against the
employer who is held liable for the negligent act or omission committed by These same principles apply by analogy to the case at bar. Filcar should not
his employee. be permitted to evade its liability for damages by conveniently passing on
the blame to another party; in this case, its Corporate Secretary, Atty. Flor
Although the employer is not the actual tortfeasor, the law makes him and his alleged driver, Floresca. Following our reasoning in Equitable, the
vicariously liable on the basis of the civil law principle of pater familias for agreement between Filcar and Atty. Flor to assign the motor vehicle to the
failure to exercise due care and vigilance over the acts of ones subordinates latter does not bind Espinas who was not a party to and has no knowledge
to prevent damage to another. In the last paragraph of Article 2180 of the of the agreement, and whose only recourse is to the motor vehicle
Civil Code, the employer may invoke the defense that he observed all the registration.
diligence of a good father of a family to prevent damage.
Neither can Filcar use the defenses available under Article 2180 of the Civil
As its core defense, Filcar contends that Article 2176, in relation with Article Code - that the employee acts beyond the scope of his assigned task or that
2180, of the Civil Code is inapplicable because it presupposes the existence it exercised the due diligence of a good father of a family to prevent damage
of an employer-employee relationship. According to Filcar, it cannot be held - because the motor vehicle registration law, to a certain extent, modified
liable under the subject provisions because the driver of its vehicle at the Article 2180 of the Civil Code by making these defenses unavailable to the
time of the accident, Floresca, is not its employee but that of its Corporate registered owner of the motor vehicle. Thus, for as long as Filcar is the
Secretary, Atty. Flor. registered owner of the car involved in the vehicular accident, it could not
escape primary liability for the damages caused to Espinas.
We cannot agree. It is well settled that in case of motor vehicle mishaps, the
registered owner of the motor vehicle is considered as the employer of the Thus, whether the driver of the motor vehicle, Floresca, is an employee of
tortfeasor-driver, and is made primarily liable for the tort committed by the Filcar is irrelevant in arriving at the conclusion that Filcar is primarily and
latter under Article 2176, in relation with Article 2180, of the Civil Code. directly liable for the damages sustained by Espinas. While Republic Act No.
4136 or the Land Transportation and Traffic Code does not contain any

9
provision on the liability of registered owners in case of motor vehicle
mishaps, Article 2176, in relation with Article 2180, of the Civil Code imposes Whoever by act or omission causes damage to another, there being fault or
an obligation upon Filcar, as registered owner, to answer for the damages negligence, is obliged to pay for the damage done. Such fault or negligence,
caused to Espinas car. This interpretation is consistent with the strong public if there is no pre-existing contractual relation between the parties, is called a
policy of maintaining road safety, thereby reinforcing the aim of the State to quasi-delict and is governed by the provisions of this Chapter.
promote the responsible operation of motor vehicles by its citizens.
In impleading Lim, on the other hand, respondents invoke the latters
This does not mean, however, that Filcar is left without any recourse against vicarious liability as espoused in Article 2180 of the same Code:
the actual employer of the driver and the driver himself. Under the civil law
principle of unjust enrichment, the registered owner of the motor vehicle has The obligation imposed by Article 2176 is demandable not only for ones
a right to be indemnified by the actual employer of the driver of the amount own acts or omissions, but also for those of persons for whom one is
that he may be required to pay as damages for the injury caused to another. responsible.

The set-up may be inconvenient for the registered owner of the motor Employers shall be liable for the damages caused by their employees and
vehicle, but the inconvenience cannot outweigh the more important public household helpers acting within the scope of their assigned tasks, even
policy being advanced by the law in this case which is the protection of though the former are not engaged in any business of industry.
innocent persons who may be victims of reckless drivers and irresponsible
motor vehicle owners. The first question to address, then, is whether or not Mendozas negligence
was duly proven. Negligence is defined as the failure to observe for the
protection of the interests of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby such other
person suffers injury.
MENDOZA vs. SPS. GOMEZ
As found by the RTC, and affirmed by the CA, Mendoza was negligent in
FACTS: driving the subject Mayamy bus, as demonstrated by the fact that, at the
time of the collision, the bus intruded on the lane intended for the Isuzu
> Isuzu Elf truck owned by respondent Leonora J. Gomez and driven by truck. Having encroached on the opposite lane, Mendoza was clearly in
Antenojenes Perez, was hit by a Mayamy Transportation bus (Mayamy bus), violation of traffic laws. Article2185 of the Civil Code provides that unless
registered under the name of petitioner Elvira Lim and driven by petitioner there is proof to the contrary, it is presumed that a person driving a motor
Mariano C. Mendoza. vehicle has been negligent if at the time of the mishap, he was violating any
> Information for reckless imprudence resulting in damage to property and traffic regulation. In the case at bar, Mendozas violation of traffic laws was
multiple physical injuries was filed against Mendoza. Mendoza, however, the proximate cause of the harm.
eluded arrest, thus, respondents filed a separate complaint for damages
against Mendoza and Lim, seeking actual damages, compensation for lost Additionally, Mendozas employer may also be held liable under the doctrine
income, moral damages, exemplary damages, attorneys fees and costs of of vicarious liability or imputed negligence. Under such doctrine, a person
the suit. who has not committed the act or omission which caused damage or injury
> Petitioners capitalized on the issue of ownership of the bus in question. to another may nevertheless be held civilly liable to the latter either directly
Respondents argued that although the registered owner was Lim, the actual or subsidiarily under certain circumstances. In our jurisdiction, vicarious
owner of the bus was SPO1 Cirilo Enrique, who had the bus attached with liability or imputed negligence is embodied in Article 2180 of the Civil Code
Mayamy Transportation Company under the so-called "kabit system." and the basis for damages in the action under said article is the direct and
Respondents then impleaded both Lim and Enriquez. primary negligence of the employer in the selection or supervision, or both,
of his employee.

RULING: In the case at bar, who is deemed as Mendozas employer? Is it Enriquez,


the actual owner of the bus or Lim, the registered owner of the bus?

10
> Private respondent Mariano Soriano was the principal of the Gabaldon
In Filcar Transport Services v. Espinas, we held that the registered owner is Primary School, a public educational institution. Private respondent Edgardo
deemed the employer of the negligent driver, and is thus vicariously liable Aquino was a teacher therein. At that time, the school was fittered with
under Article 2176, in relation to Article 2180, of the Civil Code. Citing several concrete blocks which were remnants of the old school shop that
Equitable Leasing Corporation v. Suyom, the Court ruled that in so far as was destroyed in World War II. Realizing that the huge stones were serious
third persons are concerned, the registered owner of the motor vehicle is the hazards to the schoolchildren, another teacher by the name of Sergio Banez
employer of the negligent driver, and the actual employer is considered started burying them one by one as early as 1962. In fact, he was able to
merely as an agent of such owner. Thus, whether there is an employer- bury ten of these blocks all by himself.
employee relationship between the registered owner and the driver is > Deciding to help his colleague, private respondent Edgardo Aquino
irrelevant in determining the liability of the registered owner who the law gathered eighteen of his male pupils, aged ten to eleven, after class
holds primarily and directly responsible for any accident, injury or death dismissal, he ordered them to dig beside a one-ton concrete block in order
caused by the operation of the vehicle in the streets and highways. to make a hole wherein the stone can be buried. The work was left
unfinished. The following day, also after classes, private respondent Aquino
This does not mean, however, that Lim is left without any recourse against called four of the original eighteen pupils to continue the digging.
Enriquez and Mendoza. Under the civil law principle of unjust enrichment, > Three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into
the registered owner of the motor vehicle has a right to be indemnified by the pit. Then, without any warning at all, the remaining Abaga jumped on top
the actual employer of the driver; and under Article 2181 of the Civil Code, of the concrete block causing it to slide down towards the opening. Alonso
whoever pays for the damage caused by his dependents or employees may and Alcantara were able to scramble out of the excavation on time but
recover from the latter what he has paid or delivered in satisfaction of the unfortunately fo Ylarde, the concrete block caught him before he could get
claim. out, pinning him to the wall in a standing position. As a result thereof, Ylarde
sustained injuries.
In Kierulf v. CA, we observed that this Court cannot remind the bench and > Three days later, Novelito Ylarde died.
the bar often enough that in order that moral damages may be awarded, > Ylarde's parents, petitioners in this case, filed a suit for damages against
there must be pleading and proof of moral suffering, mental anguish, fright both private respondents Aquino and Soriano. The lower court dismissed the
and the like. Citing Francisco v. GSIS, the Court held that there must be complaint on the following grounds: (1) that the digging done by the pupils is
clear testimony on the anguish and other forms of mental suffering. Thus, if in line with their course called Work Education; (2) that Aquino exercised the
the plaintiff fails to take the witness stand and testify as to his social utmost diligence of a very cautious person; and (3) that the demise of Ylarde
humiliation, wounded feelings and anxiety, moral damages cannot be was due to his own reckless imprudence. AC affirmed.
awarded.

RULING:

As regards the principal, We hold that he cannot be made responsible for


the death of the child Ylarde, he being the head of an academic school and
not a school of arts and trades. This is in line with Our ruling in Amadora vs.
Court of Appeals, wherein this Court thoroughly discussed the doctrine that
under Article 2180 of the Civil Code, it is only the teacher and not the head
of an academic school who should be answerable for torts committed by
their students. This Court went on to say that in a school of arts and trades,
YLARDE vs. AQUINO (1988) it is only the head of the school who can be held liable. In the same case,
We explained:
FACTS:
After an exhaustive examination of the problem, the Court has come to the
conclusion that the provision in question should apply to all schools,
academic as well as non-academic. Where the school is academic rather

11
than technical or vocational in nature, responsibility for the tort committed by
the student will attach to the teacher in charge of such student, following the
first part of the provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof, and only he, who
shall be held liable as an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their students except where
the school is technical in nature, in which case it is the head thereof who
shall be answerable. Following the canon of reddendo singula sinquilis
'teachers' should apply to the words "pupils and students' and 'heads of
establishments of arts and trades to the word "apprentices."

Hence, applying the said doctrine to this case, We rule that private
respondent Soriano, as principal, cannot be held liable for the reason that
the school he heads is an academic school and not a school of arts and
trades. Besides, as clearly admitted by private respondent Aquino, private
respondent Soriano did not give any instruction regarding the digging.

From the foregoing, it can be easily seen that private respondent Aquino can
be held liable under Article 2180 of the Civil Code as the teacher-in-charge
of the children for being negligent in his supervision over them and his
failure to take the necessary precautions to prevent any injury on their
persons.

The negligent act of private respondent Aquino in leaving his pupils in such a
dangerous site has a direct causal connection to the death of the child
Ylarde.

The court is not persuaded that the digging done by the pupils can pass as
part of their Work Education. A single glance at the picture showing the
excavation and the huge concrete block 7 would reveal a dangerous site
requiring the attendance of strong, mature laborers and not ten-year old
grade-four pupils.

The contention that private respondent Aquino exercised the utmost


diligence of a very cautious person is certainly without cogent basis. A
reasonably prudent person would have foreseen that bringing children to an
excavation site, and more so, leaving them there all by themselves, may
result in an accident. An ordinarily careful human being would not assume
that a simple warning "not to touch the stone" is sufficient to cast away all HIDALGO ENTERPRISES vs. BALANDAN (1952)
the serious danger that a huge concrete block adjacent to an excavation
would present to the children. Moreover, a teacher who stands in loco FACTS:
parentis to his pupils would have made sure that the children are protected
from all harm in his company. > Petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory
whose premises were installed two tanks full of water, nine feet deep, for

12
cooling purposes of its engine. While the factory compound was surrounded RULING:
with fence, the tanks themselves were not provided with any kind of fence or
top covers. The edges of the tanks were barely a foot high from the surface The attractive nuisance doctrine generally is not applicable to bodies of
of the ground. Through the wide gate entrance, which is continually open, water, artificial as well as natural, in the absence of some unusual condition
motor vehicles hauling ice and persons buying said commodity passed, and or artificial feature other than the mere water and its location.
any one could easily enter the said factory, as he pleased. There was no There are numerous cases in which the attractive nuisance doctrine has not
guard assigned on the gate. been held not to be applicable to ponds or reservoirs, pools of water,
> Mario Balandan, a boy barely 8 years old, while playing with and in streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools.
company of other boys of his age entered the factory premises through the
gate, to take a bath in one of said tanks; and while thus bathing, Mario sank Nature has created streams, lakes and pools which attract children. Lurking
to the bottom of the tank, only to be fished out later, already a cadaver, in their waters is always the danger of drowning. Against this danger children
having been died of "asphyxia secondary to drowning." are early instructed so that they are sufficiently presumed to know the
> The Court of Appeals, and the Court of First Instance of Laguna, took the danger; and if the owner of private property creates an artificial pool on his
view that the petitioner maintained an attractive nuisance (the tanks), and own property, merely duplicating the work of nature without adding any new
neglected to adopt the necessary precautions to avoid accidents to persons danger, . . . (he) is not liable because of having created an "attractive
entering its premises. nuisance."

ATTRACTIVE NUISANCE - One who maintains on his premises dangerous Therefore, as petitioner's tanks are not classified as attractive nuisance, the
instrumentalities or appliances of a character likely to attract children in play, question whether the petitioner had taken reasonable precautions becomes
and who fails to exercise ordinary care to prevent children from playing immaterial. And the other issue submitted by petitioner that the parents of
therewith or resorting thereto, is liable to a child of tender years who is the boy were guilty of contributory negligence precluding recovery, because
injured thereby, even if the child is technically a trespasser in the premises. they left for Manila on that unlucky day leaving their son under the care of no
responsible individual needs no further discussion.

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