Exam 2 Contents Flashcards

Question

Defenses

Answer 1

Two theories - Failed to establish a cause of action - Affirmative defenses

Answer 2

the doctrine applies to situations b/c of the extreme risk of the activity. – Examples include blasting and/or storing explosives * Even if extreme care is taken then is risk of injury

Answer 3

Wild animals - Tigers and Lions will qualify Some domestic animals may qualify - Danger or propensity to bite/attack - Certain dog breeds may qualify (pit bulls)

Answer 4

Strict liability may apply to manufacturers and sellers of harmful and defective products. * Application depends upon 2 factors: – The Manufacturer can better bear the cost of injury b/c increasing cost of goods and services – The Manufacturer is making a profit from its activity and therefore should bear the cost * Cost of doing business

Answer 5

Individuals/corporations who make, sell, or lease goods can be held liable for harm caused by their products to consumers, or by standers -Product liability may based torts theory of negligence, misrepresentation, strict liability, breach of warranty

Answer 6

as discussed is the failure to exercise a reasonable degree of care

Answer 7

In any action involving negligence the plaintiff must show that the defendant's conduct was the "cause in fact" of the harm – “Cause in fact” requires the showing that “but for” the defendant’s action would not have occurred. – Plaintiff must show that the defendant’s act was the proximate cause.

Answer 8

Focuses on the foreseeability of the consequences if the act. – Defective automobile cause an accident between vehicle A& B. Vehicle B crashes into a gas station’s gas pump causes an explosives damaging Person C’s nearby home. * Is the car manufacturer responsible for the damage to C’s home? But for? Proximate cause?

Answer 9

If a defendant is injured as a result of a manufacturer's/sellers fraudulent misrepresentation - it is TORT of FRAUD -Mislabeling of packages - "organic" -Intentional concealment of a product's defect Misrepresentation must be - A material fact -The seller must intend to induce the reliance on the misrepresentation

Answer 10

Strict Product Liability as a matter of public policy; a 3-part test/rationale: – Consumers should be protected against unsafe products; – Manufacturer/distributors cannot avoid liability b/c no privity of contract – Manufacturer/distributors are better equipped to bear the cost * California was the 1st state to impose strict liability – Greenman v Yuba Power Tools- Ct imposed tort law instead of contract law

Answer 11

– Product must be defective when sold – Defendant must be engaged in the business of selling that product – Product must be unreasonably dangerous to the user/consumer b/c of the condition – Plaintiff must incur physical harm to self/property by use of the product – Defective condition must have been the proximate cause of harm/damage – Product must not have been substantially altered after sale and before injury * If proven damages could be limitless

Answer 12

Unreasonably dangerous products: It is understood that certain products cannot be made entirely safe for all users - Hence only liable for unreasonably dangerous products

Answer 13

There are three type of product defects -Manufacturing -Design -Inadequate Warning

Answer 14

When the product departs from its intended design even though all possible care was exercised in the preparation and marketing

Answer 15

Essential but not defense to liability - Rationale behind strict liability in manufacturing to encourage greater investment in product safety and stringent quality control

Answer 16

the product is made in conformity with specifications, but the product or design is defective. For design defects a plaintiff must show: - a reasonable alternative design was available - The defendant's failure to adopt the alternative design made the product unreasonably unsafe

Answer 17

A product will be considered defective when the foreseeable risks could have been reduced or avoided if there was reasonable instructions or warnings given AND the omission of the instructions/warnings renders the products unsafe. – Plaintiff must show that inadequate warning was the proximate cause of the harm – Sellers must also warn consumers of harm caused by reasonable misuse of the product

Answer 18

* Failure to meet a statutory requirement/element of the cause of action * Other defenses include: – Preemption – Assumption of Risk – Product Misuse – Comparative Negligence (Fault) – Commonly Known Dangers – Knowledgeable user (User error) – SOL and Repose

Answer 19

– Plaintiff knew and appreciated the risk created by the defect; and – The plaintiff voluntarily assumed the risk by expressed agreement/words/conduct even though it was unreasonable

Answer 20

Product Misuse- using the product outside of its intended use – Only available as a defense when intended use was not foreseeable * A foreseeable is a question for the jury- Using a lawnmower to trim trees * Comparative Negligence – Negligence use on behalf of the plaintiff could limit defendant’s liability * Limit not negate liability

Answer 21

A Trademark is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods so that they can be identified. - It is a source indicator - Must be registered with either a state or with the federal to be eligible for protections

Answer 22

Registration of a trademark with US gives notice nationwide that the trademark belongs exclusively to the registrant - The registrant is allowed to use "Circled R" to indicate that the mark has been registered

Answer 23

- The defendant's use of the mark created a likelihood of confusion about the origins of the defendant good and services - Does not need to show intent -Most common remedies: Injunction

Answer 24

Dilution laws protect trademark owners, infringement protects consumers

Answer 25

* They must be distinctive enough to enable consumers to identify the product and competing products.

Answer 26

* Secondary Meaning- descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection until they have acquired secondary meaning. – Acquired distinctiveness * I’m love it; 12th Man; Chanel; Pizza Hut; Red Lobster; Lite

Answer 27

refer to an entire class of products- bicycle, phone, computer- they receive no protections Trademarks must be careful not to be generic terms, they will lose their protection. * Cornflakes, escalator, linoleum * Xerox and Kleenex- are very guarded that they are brand of photocopiers and tissues

Answer 28

copy or imitate trademarked goods but are not the real thing. – Bad for legit business and potentially dangerous for consumers

Answer 29

was enacted to stop counterfeiting goods. It is a crime to: – Traffic in or attempt to traffic in counterfeit goods or services; or – Knowing use a counterfeit mark on or in connection with goods and services

Answer 30

is an agreement permitting the use of a trademark, copyright, patent, for certain purposes. The licensee pays fees or royalties for the privilege of using the intellectual property – TAMU arrangement with the Seattle Seahawks for the use “12” – The rights of the licensee are spelled out in the agreement

Answer 31

Patent is a grant from the government that gives an inventor the exclusive right to make, use, or sell their invention for a period of 20 years (inventions). – Designs is 14 years – US law was first person to invent not file received the patent. * Changed in 2011 to first to file and 9-month challenge period on any grounds

Answer 32

an intangible property right granted by Federal Statute (Copyright Act of 1976) to the author or creator of a literary or artistic production.

Answer 33

copyrights can be registered with the US Copyright Office; Once copyrighted they are protected against: – Reproduction of the work – Development of derivative works – Distribution of the work – Public display of the work

Answer 34

Copyrighted material include books, records, film, artwork, architectural plans, menus music, videos, software, photography

Answer 35

Section 107 is very broad; issues are decided on a case-by-case basis; – Anyone using copyright material maybe committing a violation – Court generally hold the 4th factor as the most important

Answer 36

are basically information of commercial value, such as customers lists, plans, and R&D. – May also include pricing info; marketing mythology/strategy; production techniques – Trade secrets extend to ideas and expressions – No filing or registration for trade secrets

Answer 37

– Need to know basis – Kept under lock and key – Confidentiality agreement

Answer 38

Berne Convention-176 Countries have recognized and agree to enforce copyrights-after 3/1/89 * TRIPS Agreement- 100 nations signed 1994 – Established international standard protections for IP rights covering patents, trademarks, and copyrights. – Also forbids nations from discriminating against foreign owners of IP rights in the administration, regulation, or adjudication of rights * Cannot favor own nationals