EMERALD GARMENT MANUFACTURING CORPORATION vs. HON.

COURT OF APPEALS,
BUREAU OF PATENTS, TRADEMARKS AND TECHNOLOGY TRANSFER and H.D. LEE
COMPANY, INC.
G.R. No. 100098, December 29, 1995

Facts:
HD Lee Co., a foreing corpo, seeks the cancellation of a patent in favor of Emerald Garment
Manufacturing (domiciled in the Phil) for the trademark Stylistic Mr. Lee, which according to HD
Lee Co. closely resembled its own trademark Lee and thus would cause confusion, mistake and
deception to the purchasing public. The Director of Patents granted the cancellation on the
ground that petitioners trademark was confusingly similar to private respondents mark because
it is the word Lee which draws the attention of the buyer and leads him to conclude that the
goods originated from the same manufacturer. It is undeniably the dominant feature of the
mark. The CA affirmed.

Issue: WON the trademark Stylistic Mr. Lee tends to mislead or confuse the public and
constitutes an infringement of the trademark Lee.

Held: Negative for lack of adequate proof of actual use of its trademark in the Philippines prior to
Emeralds use of its own mark and for failure to establish confusing similarity between said
trademarks, HD Lee Cos action for infringement must necessarily fail.
Ratio:
Emeralds Stylistic Mr. Lee is not confusingly similar to private respondents "LEE trademark.
Colorable imitation DOES NOT APPLY because:
1. Petitioners trademark is the whole STYLISTIC MR. LEE. Although on its label the word LEE
is prominent, the trademark should be considered as a whole and not piecemeal. The
dissimilarities between the two marks become conspicuous, noticeable and substantial enough
to matter especially in the light of the following variables that must be factored in, among others:
a. Expensive and valuable items are normally bought only after deliberate, comparative and
analytical investigation; and
b. The average Filipino consumer generally buys his jeans by brand.

2. LEE is primarily a surname. Private respondent cannot, therefore, acquire exclusive

ownership over and singular use of said term.
3. After a meticulous study of the records, the SC observes that the Director of Patents and the
Court of Appeals relied mainly on the registration certificates as proof of use by HD Lee Co of the
trademark LEE which are not sufficient.

***********************
Colorable imitation defined: such a close or ingenious imitation as to be calculated to deceive
ordinary purchasers, or such resemblance of the infringing mark to the original as to deceive an
ordinary purchaser giving such attention as a purchaser usually gives, and to cause him to
purchase the one supposing it to be the other.

EMERALD GARMENT MANUFACTURING CORPORATION vs. HON. COURT OF APPEALS,

BUREAU OF PATENTS, TRADEMARKS AND TECHNOLOGY TRANSFER and H.D. LEE
COMPANY, INC.
G.R. No. 100098, December 29, 1995
FACTS:
On 18 September 1981, private respondent H.D. Lee Co., Inc. filed with the Bureau of
Patents, Trademarks & Technology Transfer (BPTTT) a Petition for Cancellation of Registration No.
SR 5054 for the trademark "STYLISTIC MR. LEE" used on skirts, jeans, blouses, socks, briefs,
jackets, jogging suits, dresses, shorts, shirts and lingerie under Class 25, issued on 27 October
1980 in the name of petitioner Emerald Garment Manufacturing Corporation.
Private respondent averred that petitioner's trademark "so closely resembled its own
trademark, 'LEE' as previously registered and used in thePhilippines cause confusion, mistake
and deception on the part of the purchasing public as to the origin of the goods.
On 19 July 1988, the Director of Patents rendered a decision granting private respondent's
petition for cancellation and opposition to registration. The Director of Patents, using the test of
dominancy, declared that petitioner's trademark was confusingly similar to private respondent's
mark because "it is the word 'Lee' which draws the attention of the buyer and leads him to
conclude that the goods originated from the same manufacturer. It is undeniably the dominant
feature of the mark.
ISSUE:
Whether or not a trademark causes confusion and is likely to deceive the public is a
question of fact which is to be resolved by applying the "test of dominancy", meaning, if the
competing trademark contains the main or essential or dominant features of another by reason
of which confusion and deception are likely to result.
HELD:
The word "LEE" is the most prominent and distinctive feature of the appellant's trademark
and all of the appellee's "LEE" trademarks. It is the mark which draws the attention of the buyer
and leads him to conclude that the goods originated from the same manufacturer. The alleged
difference is too insubstantial to be noticeable. The likelihood of confusion is further made more
probable by the fact that both parties are engaged in the same line of business.
Although the Court decided in favor of the respondent, the appellee has sufficiently
established its right to prior use and registration of the trademark "LEE" in the Philippines and is
thus entitled to protection from any infringement upon the same. The dissenting opinion of
Justice Padilla is more acceptable.

Emerald Garment Manufacturing Corporation vs Court of Appeals

251 SCRA 600 Mercantile Law Intellectual Property Law Law on Trademarks, Service Marks
and Trade Names Trademark Infringement
In 1981, H.D Lee Co., Inc., a foreign company, filed an opposition against the trademark
application of Emerald Garment. Allegedly, the trademark Stylistic Mr. Lee sought to be applied
for by Emerald Garment is too confusingly similar with the brand Lee which has for its
variations Lee Riders, Lee Sures, and Lee Leens. The Director of Patents as well as the
Court of Appeals ruled in favor of H.D. Lee Co.
ISSUE: Whether or not the decision of the Court of Appeals is correct.
HELD: No. The Supreme Court considered that the trademarks involved as a whole and ruled
that Emerald Garments STYLISTIC MR. LEE is not confusingly similar to H.D. Lees LEE
trademark. The trademark Stylistic Mr. Lee, although on its label the word LEE is prominent,
the trademark should be considered as a whole and not piecemeal. The dissimilarities between
the two marks become conspicuous, noticeable and substantial enough to matter especially in
the light of the following variables that must be factored in.
First, the products involved in the case at bar are, in the main, various kinds of jeans. These are
not your ordinary household items like catsup, soysauce or soap which are of minimal cost.
Maong pants or jeans are not inexpensive. Accordingly, the casual buyer is predisposed to be
more cautious and discriminating in and would prefer to mull over his purchase. Confusion and
deception, then, is less likely.
Second, like his beer, the average Filipino consumer generally buys his jeans by brand. He does
not ask the sales clerk for generic jeans but for, say, a Levis, Guess, Wrangler or even an Armani.
He is, therefore, more or less knowledgeable and familiar with his preference and will not easily
be distracted.
Finally, in line with the foregoing discussions, more credit should be given to the ordinary
purchaser. Cast in this particular controversy, the ordinary purchaser is not the completely
unwary consumer but is the ordinarily intelligent buyer considering the type of product
involved.
There is no cause for the Court of Appeals apprehension that Emerald Garments products might
be mistaken as another variation or line of garments under H.D. Lees LEE trademark. As one
would readily observe, H.D. Lees variation follows a standard format LEERIDERS, LEESURES
and LEELEENS. It is, therefore, improbable that the public would immediately and naturally
conclude that petitioners STYLISTIC MR. LEE is but another variation under H.D. Lees LEE
mark.
The issue of confusing similarity between trademarks is resolved by considering the distinct
characteristics of each case. In the present controversy, taking into account these unique factors,
we conclude that the similarities in the trademarks in question are not sufficient as to likely
cause deception and confusion tantamount to infringement.
Further, H.D. Lee failed to prove in court that it had prior actual commercial use of its LEE
trademark in the Philippines. H.D. Lee did show certificates of registrations for its brand but
registration is not sufficient. Actual use in commerce in the Philippines is an essential
prerequisite for the acquisition of ownership over a trademark pursuant to Sec. 2 and 2-A of the
Philippine Trademark Law (R.A. No. 166). A rule widely accepted and firmly entrenched because it
has come down through the years is that actual use in commerce or business is a prerequisite in
the acquisition of the right of ownership over a trademark.
It would seem quite clear that adoption alone of a trademark would not give exclusive right
thereto. Such right grows out of their actual use. Adoption is not use. One may make
advertisements, issue circulars, give out price lists on certain goods; but these alone would not
give exclusive right of use. For trademark is a creation of use. The underlying reason for all these
is that purchasers have come to understand the mark as indicating the origin of the wares.
Flowing from this is the traders right to protection in the trade he has built up and the goodwill
he has accumulated from use of the trademark. Registration of a trademark, of course, has

value: it is an administrative act declaratory of a pre-existing right. Registration does not,

however, perfect a trademark right.
Mirpuri vs. CA
GR 114508

Facts:
Barbizon Corp (foreign corp) has adopted the trademark Barbizon. Thus, upon finding that
Mirpuri (domiciled in the Phil) seeks to register the same trademark in the Philippines, Barbizon
Corp filed its opposition. Barbizon Corp alleges its trademark is qualified as well-known and is
therefore protected by the Convention of Paris for the Protection of Intellectual Property which
the Philippines has bound to enforce. The Director of Patents rendered a decision giving due
course to the patent application of Mirpuri. The CA, however, reversed this decision.

Issue: Whether or not the Convention of Paris for the Protection of Intellectual Property affords
protection to a foreign corporation against a Philippine applicant for the registration of a similar
trademark.

Held: Affirmative. The Philippines and the United States of America have acceded to the WTO
Agreement x x x Conformably, the State must reaffirm its commitment to the global community
and take part in evolving a new international economic order at the dawn of the new millennium.
Thus, the first paragraph of Article 6bis of the Paris Convention is applicable in the instant case:
This Article governs protection of well-known trademarks. Under the first paragraph, each
country of the Union bound itself to undertake to refuse or cancel the registration, and prohibit
the use of a trademark which is a reproduction, imitation or translation, or any essential part of
which trademark constitutes a reproduction, liable to create confusion, of a mark considered by
the competent authority of the country where protection is sought, to be well-known in the
country as being already the mark of a person entitled to the benefits of the Convention, and
used for identical or similar goods.
It is a self-executing provision and does not require legislative enactment to give it effect in the
member country.

*****************
Trademark in R.A. No. 8293, the Intellectual Property Code of the Philippines: defines as "any
visible sign capable of distinguishing goods. In Philippine jurisprudence, the function of a
trademark is to point out distinctly the origin or ownership of the goods to which it is affixed; to
secure to him, who has been instrumental in bringing into the market a superior article of
merchandise, the fruit of his industry and skill; to assure the public that they are procuring the
genuine article; to prevent fraud and imposition; and to protect the manufacturer against
substitution and sale of an inferior and different article as his product.

Mirpuri vs CA, GR No. 114508, 19 November 1999, 318 SCRA 516

FACTS

Lolita Escobar applied with the Bureau of Patents for the registration of the trademark
Barbizon, alleging that she had been manufacturing and selling these products since 1970.
private respondent Barbizon Corp opposed the application in IPC No. 686. The Bureau granted
the application and a certificate of registration was issued for the trademark Barbizon. Escobar
later assigned all her rights and interest over the trademark to petitioner Mirpuri. In 1979,
Escobar failed to file with the Bureau the Affidavit of Use of the trademark. Due to his failure, the
Bureau cancelled the certificate of registration. Escobar reapplied and Mirpuri also applied and
this application was also opposed by private respondent in IPC No. 2049, claiming that it adopted
said trademark in 1933 and has been using it. It obtained a certificate from the US Patent Office
in 1934. Then in 1991, DTI cancelled petitioners registration and declared private respondent
the owner and prior user of the business name Barbizon International.

ISSUE
Whether or not the treaty (Paris Convention) affords protection to a foreign corporation
against a Philippine applicant for the registration of a similar trademark.

HELD

The Court held in the affirmative. RA 8293 defines trademark as any visible sign capable of
distinguishing goods. The Paris Convention is a multilateral treaty that seeks to protect industrial
property consisting of patents, utility models, industrial designs, trademarks, service marks,
trade names and indications of source or appellations of origin, and at the same time aims to
repress unfair competition. In short, foreign nationals are to be given the same treatment in each
of the member countries as that country makes available to its own citizens. Nationals of the
various member nations are thus assured of a certain minimum of international protection of
their industrial property.

PRIBHDAS J. MIRPURI vs. COURT OF APPEALS, DIRECTOR OF PATENTS and the BARBIZON
CORPORATION
Petitioner's claims: "Barbizon" products have been sold in the Philippines since 1970. Petitioner
developed this market by working long hours and spending considerable sums of money on
advertisements and promotion of the trademark and its products. Almost 30 years later, private
respondent, a foreign corporation usurps the trademark and invades petitioner's market. Justice
and fairness dictate that private respondent be prevented from appropriating what is not its own.
Legally, at the same time, private respondent is barred from questioning petitioner's ownership
of the trademark because of res judicata in view of IPC No. 686.
Respondent's claims: The Opposer's goods bearing the trademark BARBIZON have been used in
many countries, including the Philippines, for at least 40 years and has enjoyed international
reputation and good will for their quality. Their trademarks qualify as well-known trademarks
entitled to protection under Article 6bis of the Convention of Paris for the Protection of Industrial
Property
Issues:
1. Whether IPC No. 2049 is barred on the ground of res judicata
2. Whether a treaty affords protection to a foreign corporation against a Philippine applicant for
the registration of a similar trademark.

Ruling:
1.

IPC No. 2049 raised the issue of ownership of the trademark and the international
recognition and reputation of the trademark for over 40 years here and abroad, different
from the issues of confusing similarity and damage in IPC No. 686. There was also a new
cause of action arising from the cancellation of petitioner's certificate of registration for
failure to file the affidavit of use. Also, the first and second cases are based on different
laws, one on Trademark Law and the other on the Paris Convention, E.O. No. 913 and the
two Memoranda of the Minister of Trade and Industry. Thus, res judicata does not apply to
the instant case.

2.

The WTO is a common institutional framework for the conduct of trade relations among its
members in matters related to the multilateral and plurilateral trade agreements annexed
to the WTO Agreement, one of which is the Agreement on Trade-Related Aspects of
Intellectual Property Rights or TRIPs. Members to this Agreement have agreed to adhere to
minimum standards of protection set by several Conventions, including the Paris
Convention. The Philippines and the US have acceded to the WTO Agreement.
Conformably, the State must reaffirm its commitment to the global community and take
part in evolving a new international economic order at the dawn of the new millenium. The
petition is denied.

United Airlines vs. Uy

G.R. No. 127768, Nov. 19, 1999

INTERNATIONAL LAW: Applicability of the Warsaw Convention: the Convention's provisions do not
regulate or exclude liability for other breaches of contract by the carrier or misconduct of its
officers and employees, or for some particular or exceptional type of damage. Neither may the
Convention be invoked to justify the disregard of some extraordinary sort of damage resulting to
a passenger and preclude recovery therefor beyond the limits set by said Convention. Likewise,
we have held that the Convention does not preclude the operation of the Civil Code and other
pertinent laws. It does not regulate, much less exempt, the carrier from liability for damages for
violating the rights of its passengers under the contract of carriage, especially if willful
misconduct on the part of the carrier's employees is found or established

FACTS:

October 13, 1989 Respondent Willie Uy is a passenger of petitioner United Airlines, bound from
San Francisco to Manila. While in San Francisco, it was found that one piece of his luggage was
over the maximum weight allowance of 70 kg. per bag. A United Airlines employee rebuked him
and in a loud voice, in front of the milling crowd, ordered him to repack his things accordingly.
Wishing not to create a scene, Willie did as asked. Unfortunately, his luggage was still overweight
so the airline billed him overweight charges. Willie offered to pay the charges with a
Miscellaneous Charge Order (MCO) or an airline pre-paid credit but the same employee, and an
airline supervisor, refused to honor it, contending that there were discrepancies in the figures.
Thus, Willie was forced to pay the charges with his American Express credit card. Upon arrival in
Manila, Willie discovered that one of his bags had been slashed and its contents, amounting to
US$5,310.00, stolen.

October 16, 1989 he sent his first letter of demand to United Airlines. The airline did not refute
Willies allegations and mailed a check representing payment of his loss based on the maximum
liability of US$9.70 per pound. Willie, thinking the amount to be grossly inadequate to
compensate him for his losses as well as for the indignities he was subjected to, sent two more
letters to petitioner airline, one dated January 4, 1990 and the other dated October 28, 1991,
demanding out-of-court settlement of P1,000,000.00.

June 9, 1992 Willie filed a complaint for damages before the Philippine courts. He had two
causes of action: (1) the shabby and humiliating treatment he received from petitioners
employees at the San Francisco Airport which caused him extreme embarrassment and social
humiliation; and (2) the slashing of his luggage and the loss of personal effects amounting to
US$5,310.00.

For its part, United Airlines moved to dismiss the complaint on the ground that it was filed out of
time. Under Art. 29 of the Warsaw Convention, the right to damages shall be extinguished if an
action is not brought within 2 years. However, the second paragraph of the said provision stated
that the method of calculating the period of limitation shall be determined by the law of the court
to which the case is submitted. It is Willies position that our rules on interruption of prescriptive
period should apply. When he sent his letters of demand, the 2-year period was tolled, giving him
ample time to file his complaint.

The trial court ordered the dismissal of the case, holding that Art. 29(2) refers not to the local
forums rules in interrupting the prescriptive period but only to the rules of determining the time
in which the action was deemed commenced (meaning filed). Willie filed his motion for
reconsideration of the order of dismissal only on the 14th day. The trial court denied his motion
and 2 days later Willie filed his notice of appeal. United Airlines this time contended that the
notice of appeal was filed beyond the 15-day reglementary period and should therefore be
dismissed. The CA, however, took cognizance of the case in the interest of justice and ruled in
favour of respondent. Hence, this petition for certiorari.

ISSUE: Whether or not the action for damages is barred by the lapse of the 2-year prescriptive
period under Art. 29 of the Warsaw Convention

HELD:

Supreme Court held that although the 2-year prescriptive period under the Warsaw Convention
has lapsed, it did not preclude the application of other pertinent provisions of the Civil Code.
Thus, the action for damages could still be filed based on tort which can be filed within 4 years
from the time cause of action accrued. As for the action pertaining to the loss of the contents of
the luggage, while it was well within the bounds of the Warsaw Convention, the Supreme Court
found that there was an exception to the applicability of the 2-year prescriptive period that is
when the airline employed delaying tactics and gave the passenger the run-around.

Applicability of the Warsaw Convention: Courts have discretion whether to apply them or not

Within our jurisdiction we have held that the Warsaw Convention can be applied, or ignored,
depending on the peculiar facts presented by each case. Thus, we have ruled that the
Convention's provisions do not regulate or exclude liability for other breaches of contract by the
carrier or misconduct of its officers and employees, or for some particular or exceptional type of
damage. Neither may the Convention be invoked to justify the disregard of some extraordinary
sort of damage resulting to a passenger and preclude recovery therefor beyond the limits set by
said Convention. Likewise, we have held that the Convention does not preclude the operation of
the Civil Code and other pertinent laws. It does not regulate, much less exempt, the carrier from
liability for damages for violating the rights of its passengers under the contract of carriage,
especially if willful misconduct on the part of the carrier's employees is found or established.

Respondent's complaint reveals that he is suing on two (2) causes of action: (a) the shabby and
humiliating treatment he received from petitioner's employees at the San Francisco Airport which
caused him extreme embarrassment and social humiliation; and, (b) the slashing of his luggage
and the loss of his personal effects amounting to US $5,310.00.

While his second cause of action - an action for damages arising from theft or damage to
property or goods - is well within the bounds of the Warsaw Convention, his first cause of action
-an action for damages arising from the misconduct of the airline employees and the violation of
respondent's rights as passenger - clearly is not.

Action for damages arising from the misconduct of the airline employees and the violation of the
respondents rights as passengers is covered under the Civil Code

Consequently, insofar as the first cause of action is concerned, respondent's failure to file his
complaint within the two (2)-year limitation of the Warsaw Convention does not bar his action
since petitioner airline may still be held liable for breach of other provisions of the Civil Code
which prescribe a different period or procedure for instituting the action, specifically, Art. 1146
thereof which prescribes four (4) years for filing an action based on torts.

Exception to the Application of the 2-year prescriptive period: When airline employed delaying
tactics

As for respondent's second cause of action, indeed the travaux preparatories of the Warsaw
Convention reveal that the delegates thereto intended the two (2)-year limitation incorporated in
Art. 29 as an absolute bar to suit and not to be made subject to the various tolling provisions of
the laws of the forum. This therefore forecloses the application of our own rules on interruption
of prescriptive periods. Article 29, par. (2), was intended only to let local laws determine whether
an action had been commenced within the two (2)-year period, and within our jurisdiction an
action shall be deemed commenced upon the filing of a complaint. Since it is indisputable that
respondent filed the present action beyond the two (2)-year time frame his second cause of
action must be barred. Nonetheless, it cannot be doubted that respondent exerted efforts to
immediately convey his loss to petitioner, even employed the services of two (2) lawyers to
follow up his claims, and that the filing of the action itself was delayed because of petitioner's
evasion.

Verily, respondent filed his complaint more than two (2) years later, beyond the period of
limitation prescribed by the Warsaw Convention for filing a claim for damages. However, it is
obvious that respondent was forestalled from immediately filing an action because petitioner
airline gave him the runaround, answering his letters but not giving in to his demands. True,
respondent should have already filed an action at the first instance when his claims were denied
by petitioner but the same could only be due to his desire to make an out-of-court settlement for
which he cannot be faulted. Hence, despite the express mandate of Art. 29 of the Warsaw
Convention that an action for damages should be filed within two (2) years from the arrival at the
place of destination, such rule shall not be applied in the instant case because of the delaying
tactics employed by petitioner airline itself. Thus, private respondent's second cause of action
cannot be considered as time-barred under Art. 29 of the Warsaw Convention.

WHEREFORE, the assailed Decision of the Court of Appeals reversing and setting aside the
appealed order of the trial court granting the motion to dismiss the complaint, as well as its
Resolution denying reconsideration, is AFFIRMED. Let the records of the case be remanded to
the court of origin for further proceedings taking its bearings from this disquisition.

SO ORDERED.

UNITED AIRLINES vs. UY G.R. No. 127768, November 19,1999

Facts: On October 13, 1989, respondent, a passenger of United Airlines, checked in together with
his luggage one piece of which was found to be overweight at the airline counter. To his utter
humiliation, an employee of petitioner rebuked him saying that he should have known the

maximum weight allowance per bag and that he should have packed his things accordingly.
Then, in a loud voice in front of the milling crowd, she told respondent to repair his things and
transfer some of them to the light ones. Respondent acceded but his luggage was still
overweight. Petitioner billed him overweight charges but its employee reused to honor the
miscellaneous charges under MCD which he offered to pay with. Not wanting to leave without his
luggage, he paid with his credit card. Upon arrival in manila, he discovered that one of his bags
had been slashed and its contents stolen. In a letter dated October 16, 1989, he notified
petitioner of his loss and requested reimbursement. Petitioner paid for his loss based on the
maximum liability per pound. Respondent considered the amount grossly inadequate. He sent
two more letters to petition but to no avail. On June 9, 1992, respondent filed a complaint for
damages against petitioner Airline. Petitioner moved to dismiss the complaint invoking the
provisions of Article 29 of the Warsaw Convention. Respondent countered that according to par. 2
of Article 29, the method of calculating the period of limitation shall be determined by the law of
the court to which the case is submitted.
Issues:
1) Does the Warsaw Convention preclude the operation of the Civil Code and other pertinent
laws?
2) Has the respondents cause of action prescribed?
Held: 1) No. Within our jurisdiction we have held that the Warsaw Convention can be applied, or
ignored, depending on the peculiar facts presented by each case. Convention provisions do not
regulate or exclude liabilities for other breaches of contract by the carrier or misconduct of its
officers and employees, or for some particular or exceptional type of damage. Neither may the
Convention be invoked to justify the disregard of some extraordinary type of damage. Neither
may the Convention be invoked to justify the disregard of some extraordinary sort of damage
resulting to a passenger and preclude recovery therefore3 beyond the limits et by said
convention. Likewise, we have held that the Convention does not preclude the operation of the
Civil Code and other pertinent laws. It does not regulate, much less exempt, the carrier from
liability for damages for violating the rights of its passengers under the contract of carriage,
especially if willful misconduct on the part of the carriers employees is found or established.
2) No. While his 2nd cause of action (an action for damages arising from theft or damage to
property or goods) is well within the bounds of the Warsaw convention, his 1st cause of action
(an action for damages arising from the misconduct of the airline employees and the violation of
respondents rights as passengers) clearly is not.
The 2-yr limitation incorporated in Art. 29 of the Warsaw Convention as an absolute bar to suit
and not to be made subject to the various tolling provisions of the laws of the forum, forecloses
the application of our own rules on interruption of prescriptive periods. (Art. 29, par. 2 was
indented only to let local laws determine whether an action shall be deemed commenced upon
the filing of a complaint.) Since, it is indisputable that respondent filed the present action beyond
the 2-yr time frame his 2nd cause of action must be barred.
However, it is obvious that respondent was forestalled from immediately filing an action because
petitioner gave him the runaround, answering his letters but not giving in to his demands. True,
respondent should have already filed an action at the first instance when petitioner denied his
claims but the same could only be due to his desire to make an out-of-court settlement for which
he cannot be faulted. Hence, despite the express mandate of Article 29 of the Warsaw
Convention that an action for damages should be filed within 2 years from the arrival at the place
of destination, such rule shall not be applied in the instant case because of the delaying tactics
employed by petitioner airlines itself. Thus, respondents 2nd cause of action cannot be
considered as time barred.