2012 SJV Statistical Data &Amp (3)

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~ STATISTICAL DATA OF THE BAR COVERAGE

FOR COMMERCIAL LAW AT A GLANCE ~

A. ESSAY: BASIS: Lex Pareto 2010: [Essay topics for the past 18

years {1990-2008}] Percentage of Bar Coverage and Most

Frequently Asked Topics for essay in order of frequency (Top

5 to 15 per topic)

WAREHOUSE RECEIPTS LAW:Instances where warehousemen are obligated to deliver; kinds; rights

of persons to whom receipt has been transferred

TRUST RECEIPTS LAW:

Nature of trust receipts; remedies; obligation of the entrustee

CORPORATION CODE: 23%

Attributes of a corporation; power to declare dividends; corporate

liquidation; pre-emptive rights; contents of articles of incorporation;

ways to increase authorized capital stock; dealings of directors,

trustees, or officers with the corporation; requisites of a derivative

suit; doctrine of corporate opportunity; express powers of the

corporation; power to acquire own shares; power to invest corporatefunds in another corporation or business for any other purpose;

certificate of stocks and transfer shares; stock corporation v. non-

stock corporation; ultra vires acts and powers, liability, & removal ofboard of directors/trustees

NEGOTIABLE INSTRUMENTS LAW: 18%

Requisites of a negotiable instrument; rights and who is deemed a

holder in due course; effect of forged signatures; check; liability of an

accommodation party; rules where instrument is incomplete but

delivered; omissions not affecting negotiability; negotiation; liability

of maker, drawer, acceptor, indorser; effects of alteration of

instrument; provisions not affecting negotiability; kinds of

indorsement; bearer instrument; notice of dishonor; discharge of a

negotiable instrument

INSURANCE CODE: 12%

Casualty Insurance; insurable interest in property insurance; rule for

payment of claims where there is over-insurance by double

insurance; right of the insurer to rescind a contract of life insurance;

insurable interest in life insurance; designation of beneficiary;

warranties; proper deviation; premium; double insurance; insurable

interest of mortgagee and mortgagor; who may be insured; interest of

a beneficiary; insurable interest in property; concealment

SECURITIES & REGULATION CODE: 6%

Transfer of jurisdiction of certain cases; insider; tender offer;

liabilities of a person who violates the unfair use of inside

information; manipulation of security prices and insider trading

TRANSPORTATION LAW: 6%

[Maritime Commerce]: Doctrine of limited liability; bill of lading;

collision where both vessels are at fault; transhipment of goods;

charter party; rescission of charter party and total rescission by

owner; doctrine of inscrutable fault

[Common Carrier]: Common carrier, defense of due diligence not

available to a common carrier; liability for loss; presumption ofnegligence/available defenses; responsibility for acts of strangers and

co-passengers; stipulation limiting carriers liability; presumption of

negligence

[Warsaw Convention]: Limitation of liability

[COGSA]: Prescriptive period to file an action against the carrier for

loss or damage

[Public Service Act]: Requirements for the granting of a certificate of

public convenience; unlawful act; revocation or sale of a certificate of

public convenience

BANKING LAWS: 6%

R.A. 7653 NCBA: BSP; Receivership and liquidation; legal tender

R.A. 8791 GBL: Foreclosure of real estate mortgage; restriction on

bank exposure to DOSRI; prohibited transactions after the bank

becomes insolvent; classes of banks; limits or restrictions on loan and

credit accommodation

R.A. 9160 AMLA: Definitions

INTELLECTUAL PROPERTY CODE: 5%

Copyrightable works; ownership of copyright and ownership of the

commissioned work; remedies of the true and actual inventor;

registrability of trademarks; infringement of trademark v. unfaircompetition; rights of authors as to his economic rights; limitations

on copyright; patentable and non-patentable inventions; fair use

doctrine;

CHATTEL MORTGAGE LAW:

Foreclosure of chattel mortgage; after-acquired properties;

registration requirements to make chattel mortgage binding against

third parties

OTHERS: 13% (not all are included in the coverage)

MARITIME COMMERCE LAW: 5 % (not included in the coverage)

BULK SALES LAW: 3 % (not included in the coverage)

INSOLVENCY: 2% (not included in the coverage)

*********************************************************************

B. MCQS: BASIS: 2011 Bar Examination MCQs (100 items)

TOPIC # OF TIMES

Letters of Credit 0

Warehouse Receipts Law 5

Trust Receipts Law 2

Negotiable Instruments Law 36

Insurance Code 14

Transportation Law 10

Corporation Code 18

Securities & Regulation Code 0

Banking Laws 2

Intellectual Property Code 9

Real Estate Mortgage Law 2

Chattel Mortgage Law 1

Anti-Money Laundering Act 1

TOTAL: 100

LETTERS OF CREDIT: 0

WAREHOUSE RECEIPTS LAW: IIIII - 5

A. Nature & functions of a warehouse receipt:

1.To whom delivered: IIIB. Duties of a Warehouseman: I

C. Warehouse lien: I

TRUST RECEIPTS LAW: II - 2

A. Definition/concept of a trust receipt transaction:

1.Ownership of goods, docs. &instruments under a t.r.: ID. Remedies available: I

NEGO. INSTRUMENTS LAW: IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII - 36

A.Forms and Interpretation:1.Requisites of Negotiability: IIIII2.Kinds of Negotiable Instruments: II

C. Rules of interpretation: I


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D. Signature:

1.Signature of agent: III2.Forgery: IIII

F. Accommodation Party: I

G. Negotiation:

1.Kinds of indorsement: IIIIH. Rights of the holder: II

1.Holder in due course: I2.Defenses against the holder: III

I.

Liabilities of Parties:1.Warranties: I2.Acceptor: I

K. Notice of dishonor:

1.Parties to be notified: IL. Discharge of Negotiable Instrument: I

1.Discharge of parties secondarily liable: IM. Material Alteration:

1.Effect of material alteration: IIIO. Presentment for acceptance: II

INSURANCE CODE: IIIIIIIIIIIIII - 14

C. Characteristics/nature of insurance contracts: IIII

D. Classes:

1.Marine: IIIII2.Life: I

E. Insurable Interest:

1.In property: IG. Rescission of Insurance Contract:

1.Concealment: IIInsurance Company Structure: I

TRANSPORTATION LAW: IIIIIIIIII - 10

A. Common Carriers:

1.Diligence required of common carriers: IB. Vigilance over the goods:

1.Delivery of goods to common carrier: I2.Duration of liability (actual or constructive delivery): I

C. Safety of Passengers:

1.Liability for acts of other passengers and strangers: I2.Liability for acts of employees: I3.Extent of liability for damages: I

E. Maritime Commerce:

1.Exceptions to ltd. liability of shipowners & shipping agents: I2.Carriage of Goods by Sea Act (COGSA) limitation of liability: I

F. Public Service Act:

1.Requisites for citizenship: I2.Fixing of rate: I

CORPORATION CODE: IIIIIIIIIIIIIIIIII - 18

D. Corporate juridical personality:

1.Doctrine of piercing the corporate veil: IE. Capital structure: I

1.Minimum capital stock and subscription requirements: I2.Corporate term: I

F. Incorporation and organization:

1.Subscription contract: I2.Adoption of by-laws (amendments): I

G: Corporate Powers:

1.Consequences of ultra vires acts: I2.Power to declare dividends: IH. Stockholders & members:

1.Proprietary rights: pre-emptive right: I2.Proprietary rights: right of appraisal: II

I. Board of Directors and Trustees:

1.Tenure, disqualifications & qualifications of directors: II2.Elections (cumulative voting): I3.Contracts between corporations w/ interlocking directors: I4.Solidary liabilities for damages: I

K. Dissolution and Liquidation:

1.Voluntary mode of dissolution: by shortening of corp. term: IL. Other Corporation:

1.Non-stock Corporation: I

SECURITIES & REGULATION CODE: 0

BANKING LAWS: II - 2

A.New Central Bank Act (R.A. 7653)1.How the BSP handles banks in distress (receivership): I

B. General Banking Act (R.A. 8791)

1.Bank powers & liabilities: IINTELLECTUAL PROPERTY CODE: IIIIIIIII - 9B. Patents:

2.Limitations of patent rights: prior user: IC. Trademarks:

1.Trade names or business name: II2.Well-known marks: I

D. Copyright:

1.Non-copyrightable works: II2.Rule on ownership of copyright: I3.Copyrightable works (original works): I4.Rights of copyright owners: I

REAL ESTATE MORTGAGE LAW (ACT 3135 a.a. R.A. 4118): II - 2

1.Procedure: Need for republication in case of postponement: I2.Remedies available to mortgagee upon default of mortgagor: I

CHATTEL MORTGAGE LAW (ACT 1508): I - 1

1.Essential Requisites: IANTI-MONEY LAUNDERING ACT (R.A. 9160 a.a. 9194): I - 1

1.Obligations of covered institutions: I*********************************************************************

C. SHORT LIST OF SOME PERTINENT PERIODS IN

COMMERCIAL LAW:

SOME PERTINENT COMMERCIAL LAW PERIODS

Period / Years Basis

INSURANCE CODE:

1. Proceeds for Life

Insurance

a. Must be paid immediately

upon the maturity of the

policy if there is a maturity

date.b. If the policy matures

upon the death of the

insured, within 60 days

after presentation of the

claim and filing of the proof

of death of the insured,

Sec. 242,

Insurance

Code

2. Property

Insurance

a. Proceeds must be paid

within 30 days after proof

of loss is received by the

insurer and ascertainment

of the loss or damage is

made either by agreement

or by arbitration.

2. If no ascertainment is

made within 60 days after

receipt of proof of loss, the

loss shall be paid within 90

days after such receipt.

Sec. 243,

Insurance

Code

3. Prescriptive

period of action

Parties to an insurance

contract may validly agree

that an action on the policy

should be brought within a

limited period of time,

provided that it is not less

than 1 year from the time

the cause of action accrues.

If period is less than 1 year

from the accrual of the

cause of action, it is void.

Sec. 63,

Insurance

Code


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2. If there is no stipulation

or if the stipulation is void,

action must be brought

within 10 years for written

contracts.

Note: Prescriptive period

begins from the date the

insurer rejects the claim

filed and not from the time

of loss.4. Compulsory

Motor Vehicle

Liability Insurance

Written notice of claim must

be filed within 6 months

from the date of accident.

Claim is deemed waived if

not filed even if it is brought

within 1 year from its

rejection.

Vda. De

Gabriel v. CA,

G.R. No.

103883, Nov.

14, 1996

5. Suit for damages

in insurance

contracts

Must be filed within 1 year

from the date of denial of

the claim by the insurer,

whether filed in the proper

court or with the InsuranceCommissioner.

Sec. 384,

Insurance

Code

TRANSPORTATION LAW:

1. Code of

CommerceCarriage of goods

(Applicable to

domestic/inter-

island/coastwise

transportation)

a. Notice of damage must be

filed within 24 hours forlatent damage

b. Prescriptive period: If

none provided, NCC applies.

Written contract: 10 years

Oral contract: 6 years

c. Parties can stipulate

shorter period for

prescriptive period.

Art. 366,

Code ofCommerce

Art. 1144,

Art. 1145,

New Civil

Code

2. COGSA Carriage

of goods

(Applicable to

international/over-

seas/foreign

transportation)

a. Notice of damage must be

filed within 3 days from

delivery for latent damage

b. 1 year from the date of

delivery of the damaged

goods.

c. Parties cannot stipulate a

prescriptive period shorter

than 1 year.

Sec. 3 (6),

COGSA

Dole Phil. V.

Maritime Co.

No. L-61352,

Feb. 27, 1997

CORPORATION CODE:

1. Corporate Term 50 years unless sooner

dissolved or extended. If

extended, must not be made

earlier than 5 yrs. prior to

the original expiry date

unless made with justifiable

reasons as determined by

the Securities and Exchange

Commission.

Sec. 11,

Corporation

Code

2. Exercise of right

of appraisal

Demand for payment must

be made within 30 days

from the date the vote is

taken.

3. Period of

liquidation

3 years

4. Proxy period

validity

Not more than 5 years

INTELLECTUAL PROPERTY CODE

1. Action for

Damages

Must be commenced within

4 years after committing the

acts of infringement.

Sec. 79,

Intellectual

Property

Code

*********************************************************************

D. INTELLECTUAL PROPERTY CODE POINTERS: [Based on

the most frequently asked essay topics and mcqs)

I. PATENTS:

Non-patentable inventions [Sec. 22, IP Code]: The following

shall be excluded from patent protection:

1.Discoveries, scientific theories and mathematicalmethods;

2.Schemes, rules, and methods of performing mental acts,playing games or doing business and programs for

computers;

3.Methods for treatment of the human body; and4.Plant varieties or animal breeds or essentially biological

process for the production of plants and animals.

Right to a patent [Sec. 28, IP Code]: belongs to the inventor, his

heirs, or assigns.

First to file rule [Sec. 29, IP Code]: if two or more persons have

made the invention separately and independently of each

other, the right to the patent shall belong to the person who

filed an application for such invention, or where two or more

applications are filed for the same invention, to the applicant

who has the earliest filing date or the earliest priority date.

Inventions created pursuant to a commission [Sec. 30.2, IPCode]: In case the employee made the invention in the courseof his employment contract, the patent shall belong to the

employee if the inventive activity is not a part of his regular

duties even if the employee uses the time, facilities, and

materials of the employer.

Patent application [Sec. 32.2, IP Code]: No patent may be

granted unless the application identifies the inventor. If the

applicant is not the inventor, the office may require it to

submit said authority.

Grant of Patent [Sec. 50, IP Code]: The issuance of letter patentcreates a presumption which yields only to clear and cogent

evidence that the patentee was the original and first inventor.

The burden of proving lack of novelty is on him who avers it

and the burden is a heavy one which is met only by clear and

satisfactory proof which overcomes every reasonable doubt.

(Manzano v. Court of Appeals, G.R. No. 113388, September 5,1997)

Remedies of the true and actual inventor[Sec. 68, IP Code]: If a

person who was deprived of the patent without his consent or

through fraud is declared by final court order or decision to

be the true and actual inventor, the court shall order for his

substitution as patentee, or at the option of the true inventor,

cancel the patent, and award actual and other damages in his

favour if warranted by the circumstances.

Defenses available for the defendant [Sec. 81 & 61, IP Code]:1. Patent is invalid2. Patent is not new or patentable;3. Patent does not disclose the invention in a manner

sufficiently clear and complete for it to be carried

out by any person skilled in the art; or

4. Patent is contrary to public order or morality


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Tests for Patent Infringement: Literal infringement and theDoctrine of Equivalents: [Literal infringement] To determinewhether the particular item falls within the literal meaning of

the patent claims, the court must juxtapose the claims of the

patent and the accused product within the overall context of

the claims and specifications, to determine whether there is

exact identity of all material elements. [Doctrine of

Equivalents] Courts have also adopted the doctrine of

equivalents which recognizes that minor modifications in apatented invention are sufficient to put the item beyond the

scope of literal infringement. Thus, according to this doctrine,

"an infringement also occurs when a device appropriates a

prior invention by incorporating its innovative concept and,

albeit with some modification and change, performssubstantially the same function in substantially the same way

to achieve substantially the same result." (Godines v. CA, G.R.

No. 97343 September 13, 1993)

Prior User in Good Faith Example [2011 MCQ]: X invented a

device which can recharge a cellphone battery for which he

applied for and was granted a patent effective within the

Philippines. Y, however, also invented a similar device which

he has been using in his cellphone business in Manila a year

before the grant of Xs patent. X files an injunctive suit againstY to stop him from using the device on the ground of patent

infringement. Such suit cannot prosper because Y is a prior

user in good faith.

II. COPYRIGHTS

Original Works and Derivative Works [Sec. 172 & 173, IP Code]:Intellectual properties protected by the law on copyright:

1. Original Works2. Derivative Works

Original Works [2011 MCQ]: Under the IP Code, lectures,

sermons, addresses or dissertations prepared for oral

delivery, whether or not reduced in writing or other material

forms, are regarded as original works.

Economic Rights of the Author [ Sec. 177, IP Code] :Economic

rights shall consist of the exclusive right to carry out,

authorize, or prevent the following acts:1.Reproduction of the work or substantial portion of it;2.Dramatization, translation, adaptation, abridgment,

arrangement or other transformation of the work;

3.First public distribution of the original and each copy ofthe work;

4.Rental of the original or a copy of an audio-visual orcinematographic work;

5.Public display of the original or a copy of the work;6.Public performance of the work; and7.Other communication to the public of the work.

Scope of Moral Rights [Sec. 193.1, IP Code]: To require that the

authorship of the works be attributed to him, in particular,

the right that his name, as far as practicable, be indicated in a

prominent way on the copies, and in connection with the

public use of his work.

Moral Rights [2011 MCQ]: are rights apart from economic

rights which an author may transfer by way of assignment.

The term of these moral rights shall last during the lifetime of

the author and for 50 years after his death.

Fair Use Doctrine [Sec. 185, IP Code]: Fair use of a copyrighted

work for criticism, comment, news reporting, teaching

including multiple copies for classroom use, scholarship,

research and similar purposes is not an infringement of

copyright.

Limitations on Copyright [Sec. 184, IP Code]: [Only those whichhave been asked in the Bar Exams]

The following acts, among others, shall not constituteinfringement:

1.The recitation or performance of a work, once it has beenlawfully made accessible to the public, if done privately

and free of charge or if made strictly for a charitable or

religious institution or society. [1994 Essay Bar Question]2.Any use made of a work for the purpose of any judicial

proceedings or for the giving of professional advice by a

legal practitioner. [2006 Essay Bar Question] Situation:

Lawyer writes legal opinion for a client about the

difference between apprenticeship and learnership,

quoting a labor law experts comment in his book

without his permission. It is covered under the

limitations.

3. Fair Use of a copyrighted work. [1998 Essay BarQuestion] May a person have photocopies of some pagesof the book written by a professor without violating

copyright law? Yes. Private reproduction of a published

work where the reproduction is made by a naturalperson exclusively for research and private study is

permitted without the authorization of the owner of the

copyright of the work.

Commissioned Work [Sec. 178.4, IP Code]: In case of

commissioned work, the creator (in the absence of a written

stipulation to the contrary) owns the copyright, but the work

itself belongs to the person who commissioned its creation.

Copyright vis--vis Commissioned Artist [2004]: BR and CT are

noted artists whose paintings are highly prized by collectors.Dr. DL commissioned them to paint a mural at the main lobby

of his new hospital for children. Both agreed to collaborate on

the project for a total fee of 2 million pesos to be equally

divided between them. It was also agreed that Dr. DL had to

provide all the materials for the painting and pay for the

wages of the technicians and labourers needed for the work

on the project. Assume that the project is completed and both

BR and CT are fully paid the amount of 2 million pesos as

artists fee by DL. Under the law on IP, who will own the

mural? Who will own the copyright to the mural? Sec. 178.4 of

the IP Code states that the creator owns the copyright in the

absence of a written stipulation to the contrary, but the work

itself belongs to the person who commissioned it. Thus, the

mural belongs to DL. But BR and CT own the copyright, since

there is no stipulation to the contrary.

Non-copyrightable works [2011 MCQ]: 1. A new way ofpresenting a telephone directory in a mobile phone and which

uses a lesser time for locating names and telephone numbers

cannot be copyrighted because it is a mere system or method.

Non-copyrightable works [2011 MCQ]: 2. X, an amateur

astronomer, presented his findings about a massive volcanic

eruption in Jupiter before the Association of Astronomers of

the Philippines which was repeated in an article written by Y,

a professional astronomer, and published in a science journal

without any attribution to him. Y has not infringed on X s


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copyright because no protection extends to any discovery,

even if expressed.

Rules on ownership of copyright [2011 MCQ]: An associate

attorney in a law firm who wrote a newspaper publisher a

letter disputing a columnists claim about an incident in the

attorneys family using the law firm s letterhead and its

computer in preparing the letter. He used the firms

messenger to deliver the letter to the publisher. The associateattorney owns the copyright to the letter as he is the original

creator of the contents of the letter.

III. TRADEMARKS

[1996 Bar Question] What is the distinction between aninfringement of a trademark and unfair competition?

1.Infringement of trademark is the unauthorized use of atrademark, whereas unfair competition is the passing off

of ones goods as those of another;

2.Fraudulent intent is unnecessary in infringement oftrademark, whereas fraudulent intent is essential in

unfair competition;

3.The prior registration of the trademark is a prerequisiteto an action for infringement of trademark, whereas

registration of the trademark is not necessary in unfaircompetition. (Del Monte Corporation et al v. CA et al, G.R.No. L-78325 January 25, 1990)

[1996 Bar Question] Elements of Unfair Competition [Sec. 168,

IP Code]:

1. There is the passing off of ones goods as those of another;

2. Fraudulent intent is essential; and;

3. Prior registration is not necessary. (Converse RubberCorporation et al v. Jacinto Rubber and Plastics Co., Inc, G.R.

Nos. L-27425 & L-30505 April 28, 1980)

Certificate of Registration: A certificate of registration of a

mark shall be prima facie evidence of the validity of the

registration, the registrants ownership of the mark, and ofthe registrants exclusive right to use the same in connectionwith the goods or services and those that are related thereto

specified in the certificate. The certificate of registration

confers upon the trademark owner the exclusive right to use

its own symbol only to those goods specified in the

certificates, subject to the conditions and limitations stated

therein. Thus, the exclusive right of petitioner in this case to

use the trademark CANON is limited to the products covered

by its certificate of registration, but cannot cover other types

of products. Undoubtedly, paints, chemicals, toner and

dyestuff are unrelated to sandals. (Canon Kabushiki Kaisha v.

CA, G.R. No. 12090, July 20, 2000)

Use of indications by third parties for purposes other than those

for which the mark is used [Sec. 148, IP Code]: Registration of

the mark shall not confer on the registered owner the right to

preclude third parties from using bona fide their names,addresses, pseudonyms, a geographical name, or exact

indications concerning the kind, quality, quantity, destination,

value, place of origin, or time of production or of supply; of

their goods or services; provided, that such use is confined to

the purposes of mere identification or information and cannot

mislead the public as to the source of the goods or services.

Ex. Aling Sony using the business name Sonys Service

Center falls under this provision.

Test of Dominancy: Focuses on the similarity of the prevalent

features of the competing trademarks which might cause

confusion or deception and thus constitutes infringement. If

the competing trademark contains the main or essential or

dominant features of another, and confusion and deception is

likely to result, infringement takes place. Duplication or

imitation is not necessary; nor is it necessary that the

infringing label should suggest an effort to imitate. The

question at issue in cases of infringement of trademarks iswhether the use of the marks involved would be likely to

cause confusion or mistakes in the mind of the public or

deceive purchasers. (Amigo Manufacturing v. Cluett PeabodyCo., G.R. No. 139300, March 14, 2001)

[2011 MCQ] T is the registered trademark owner of CROCOS

which he uses on his ready-to-wear clothes. Banking on the

popularity of Ts trademark, B came up with his own

CROCOS mark, which he then used for his CROCOS

burgers. T now sues B for trademark infringement but B

argues that his product is a burger, hence, there is no

infringement. Is B correct? No, since the owner of a well-

known mark registered in the Philippines has rights that

extend even to dissimilar kinds of goods.

[2011 MCQ]: Eagleson Refillers, Co. a firm that sells water to

the public, opposes the trade name application of Eagleson

Laundry, Co. on the ground that such trade name tends todeceive trade circles or confuse the public with respect to the

water firms registered trade name. Will the opposition

prosper? No, since the companies are not engaged in the same

line of business.

[2011 MCQ]: A, the proprietor of a fleet of ten taxicabs,

decides to adopt, as his business name, A Transport Co., Inc..May this be allowed? No, it would be deceptive since he is a

proprietor, not a corporation.

Documents

2012 SJV Statistical Data &Amp (3)