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Law For Managers > General Questions - lecture 6-10 > Flashcards

General Questions - lecture 6-10 Flashcards

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1
Q

What are the two Acts that protect intellectual property?

A

Copy Right Designs and Patents Act 1988 and Trademark Act 1994

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2
Q

What are the requirements for patents and how long does it last?

A

20 years. It must be

1) New
2) Goes beyond the state of the art
3) Capable of Industrial Applications
4) Must not fall into non-patentable things i.e. plants.

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3
Q

How long does a patent normal take from application?

A

4 years. Slow and costly

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4
Q

What is the application process for obtaining a patent

A

1) patent agent drafts a patent and submits it to the patent office. From this point, any other attempt to patent something similar will be blocked
2) Offices ensure novelty. Publish specification
3) full examination takes place to ensure the requirements of legislation are complied with after granting.

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5
Q

What types of infringement are there for patents?

A

‘actual’ - copying good

‘contributory’ - selling/importing the good

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6
Q

How long does copyright last?

A

life of the author plus 70 years

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7
Q

What does copyright protect?

A

1) Original expressions of literacy, art, dramatic or musical works etc. Computer programmes are also protected.
2) Non original publications such as film sound and technical drawings etc.

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8
Q

If an employee creates something, who owns the copyright?

A

A company. It can license out rights to copy etc

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9
Q

What constitutes copyright infringement?

A

copying, broadcasting, translating etc. but must involve ‘substantial’ part - no definition of substantial

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10
Q

What is an Anton Piller injunction?

A

type of injunction which is includes searching premises and seizing copies

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11
Q

What is fair dealing? Is it a copyright infringement?

A

No it is not an infringement, it is copying for yourself etc

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12
Q

What is the process to obtaining copyright?

A

There is no process, it arrises automatically.

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13
Q

What do designs cover?

A 
Outward shape (not design on paper as these are under copyright )
Can be registered or unregistered
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14
Q

What is a trademark?

A

word, symbol or combination of both which are distinctive enough to distinguish one company’s goods from another.
Can include sounds, logos, colours combination

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15
Q

What can’t a trademark be?

A

offensive, misleading or too common

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16
Q

Which trademarks have statutory protection?

A

Only registered ones. Passing Off is what is known if an unregistered trademark is copied. This is part of Tort law, and is a civil wrong.

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17
Q

Ownership of Intellectual proper can be by…?

A

An individual, a number of people or a business. It can be sold.

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18
Q

If an employee discovers something that is then patented, what is he entitled to?

A

The patent is not his, although if his contribution was of outstanding benefit, then entitled to a ‘fair share’ of profits

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19
Q

What is the purpose of a non disclosure form?

A

Allows you to discuss intellectual property without it being stolen

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20
Q

What is counterfeiting and what is it related to?

A

trademarks - manufacture, importation, distribution and sale of false brands without permission for gains

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21
Q

What is piracy and what is it to do with?

A

copyrights - copying, distributing and importing infringed work

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22
Q

Who informs the criminal offences related to intellectual property and what is the maximum punishment?

A

Trading Standards Office - 50k fine and 10 years in prison

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23
Q

How do you stop an employee stealing information?

A

There is an implied term of fidelity in contract. Duty of confidentiality. Can also use a non disclosure form

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24
Q

How do you stop an ex employee from stealing information?

A

Restrictive covenant in every contract - stop employee working in competition for limited time. only enforceable if reasonable - based on location, duration, nature

remedies include damages and injunctions

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25
Q

What is the difference between procurement and logistics?

A

Procurement: buying of goods
Logistics: physically receiving them

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26
Q

What is the definition of a contract?

A

Agreement to be legally bound supported by consideration.
3 basic requirements
1) Agreement
2) Intention to create legal relationship
3) Consideration

Note: intention to be legally bound not assumed in social setting but is in business setting

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27
Q

What is an offer?

A

statement of terms on which the offeror is willing to be bound. If accepted then binding. An invitation is not an offer

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28
Q

What are the relevant facts of offers?

A

Must be communicated to offeree
Lapse after reasonable time
offerer can revoke if he lets offer know.
If rejected, can’t go back
Counter offer counts as rejection and then a new offer

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29
Q

What are relevant facts surrounding acceptance?

A

Need unqualified consent, both are bound on acceptance, acceptance is not implied by silence but can be by action.
Acceptance comes into motion as soon as it is sent in regards to using postal services for communication

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30
Q

What is consideration?

A

both parties must receive a benefit and suffer a detriment - it is the prise paid for a promise

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31
Q

What are the first 3 rules of consideration?

A

Consideration must not be past
consideration must be sufficient but need not be adequate
consideration must move from the promisee

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32
Q

What are the last 3 rules of consideration?

A

existing public duty will not count
existing contractual duty will not count
part payment of debt not a valid promise to forego the remaining debt

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33
Q

When can you waver existing rights?

A

when it is supported by consideration

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34
Q

What is a condition?

A

fundamental part of the contract that if broken renders it voidable. Can also claim damages.

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35
Q

What is a warranty?

A

not a vital but subsidiary obligation. A breach of warranty does not render the contract voidable but does allow for the rise of damages claims

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36
Q

What are the 3 potential vitiating factors of contracts?

A

Mistake, Misrepresentation, Illegal Contract

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37
Q

Does a mistake make a contract void?

A

A mistake only makes a contract void if it is a qualifying mistake. These occur infrequently in very restrictive circumstances

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38
Q

what is misrepresentation?

A

A false statement of fact made before or during the time the contract is made that induces the other party into entering into it. The contract becomes voidable.

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39
Q

What is an exclusion clause and why are they allowed to exist?

A

An attempt to limit liability. allowed due to the Principle of Freedon of Contract

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40
Q

What Acts govern the laws surround exclusion clauses?

A

Unfair Terms of Contract Act 1977

Unfair Terms in Consumer Contracts Regulations 1999

41
Q

What are the common law rules surrounding Exclusion clauses?

A

Must be properly incorporated by either signature or by notice.
Exclusion clause must cover the breach. i.e. only covers damage that is expressly excluded

42
Q

What are the general rules surrounding the judgement of exclusion clauses?

A

If included by notice, only effective if the person relying on it took reasonable steps to bring it to the attention of the other party.
Regarding ‘covering the breach’, if uncertainties arrises, rule against the party that is relying on the exclusion clauses - - contra proferentem rule

43
Q

What is the contra proferentem rule?

A

Going against the party that is relying on exclusion clauses. interpretation against the draftsmen when dealing with ambiguities.

44
Q

What is said under section 2 of the Unfair Terms of Contract Act 1977?

A

Any exclusion clause that seeks to avoid liability for a breach of contract is only valid to the extent that it complies with the requirements of reasonableness

45
Q

What are the guidelines on reasonableness surrounding exclusion clauses?

A

1) relative bargaining strength
2) extent to which it was open for parties to insure themselves
3) whether customer knew/ought to have known about its inclusion
4) particular circumstance

46
Q

What are the 2 exceptions to which exclusion clauses cannot be used and according to what law?

A

1) Consumer Protection Act 1987 - cannot be used regarding safety - cannot limit liability for injury from dangerously defective goods if the contract is between a customer and a business
2) Sale of Goods Act 1979 - Regarding quality - cannot reduce liability for substandard goods and services if contract between a business and a customer. If both a businesses, can include them, although only if they pass the test of reasonableness

47
Q

The UTCCR 1999 was based upon what?

A

An EU directive. it is secondary legislation that did not need to go through parliament

48
Q

What does UTCCR stand for and in what year was it introduced?

A

Unfair Terms in Consumer Contracts Regulations 1999

49
Q

What does regulation 5 of the UTCCR 1999 state ?

A

A term is unfair if it gives rise to significant imbalances of party rights caused to the detriment of the consumer

50
Q

What regulation states that all terms in a contract must be stated in plain english and if there is ambiguity, the consumer’s side is taken?

A

regulation 7 of the Unfair Terms in Consumer Contract Regulations 1999

51
Q

What are the rules regarding misrepresentation?

A
  1. Half truths can be misrepresentations
  2. Statements true at the time they are made but then false at the time of the contract can be misrepresentations
  3. Mere Sales puffs are not intended to be taken as fact
  4. Statements of opinion are not actionable
  5. the Misrepresentation must induce the contract
52
Q

What are the three types of misrepresentation and which is the most common?

A

Innocent, fraudulent, negligent.

Negligent is the most common - the other two are much harder to prove

53
Q

What is a negligent misrepresentation?

A

a misrepresentation where the seller believes the statement to be true but without reasonable grounds for doing so

54
Q

With whom does the burden of proof lie with when it comes to negligence?

A

The defendant - he must disprove negligence

55
Q

What are the remedies for misrepresentation?

A

Damages and rescission - although if misrepresentation is innocent, only rescission

56
Q

Under what law does misrepresentation get covered by?

A

Common Law as well as the Misrepresentation Act 1967

57
Q

What are the remedies for a breach in contract?

A

Damages - to bring claimant to where they would be if the contract had been performed properly - restitutio in integrum

58
Q

What is the remoteness of damages rule?

A

damages only available if
1) arrises naturally in normal course of events
OR
2) both parties may reasonably have contemplated them at the time of the contract - i.e. the breach was foreseeable

59
Q

What are liquidated damages?

A

Damages specified in advance - only enforceable if a genuine estimate - anything above is a penalty clause which are not enforceable although businesses honour these by mutual agreement

60
Q

How many directives from the EU has there been since joining?

A

20

61
Q

Negligence law comes from where?

A

Common Law

62
Q

Health and Safety laws are defined in what act?

A

Health and Safety at Work Act 1974

63
Q

Who brings what types of cases regarding health and safety to court?

A

Employees can bring civil action against employers for negligence
the HSE brings criminal cases to court and is responsible for investigating and inspecting prior to this

64
Q

What is negligence?

A

carelessness of a person that results in injury or damage to others or properties. It must be foreseeable.

65
Q

What are the two civil cases surrounding negligence an employee can bring to an employer?

A

1) Breaches of DIRECT duties of care
2) When an employee is vicariously liable for the negligence of other employees when acting in the course of their employments

66
Q

What are the 3 direct duties of employers that are non delegable?

A

1 - provide competent staff - reasonable in selecting, proper instruction, dismissing those that have dangerous behaviour
2 - provide safe equipment and premises - taking reasonable care to protect from and maintain dangerous equipment
3 - combine 1 and 2 to provide a safe system for work - proper training, supervision, protective ware, adequate safety notices

67
Q

What conditions need to be satisfied for employers to face vicarious liability claims?

A

An Employer is responsible for employees negligence as long as they are acting in the course of their employment and not off in a frolic of their own.

68
Q

Are employers vicariously liable for contractors?

A

No

69
Q

The Health and Safety at Work Act 1974 was made after what report, and what did it state?

A

The robes Committee report in 1972 - stated 100 people killed a year at work

70
Q

What are the five key duties of employers mentioned in the health and safety at work act 1974 ?

A

1) provide a safe plant and system of work
2) ensure safety in use of dangerous articles and substances
3) maintain a safe place of work including access
4) provide a safe working environment
5) provide information, instruction, training and supervision to ensure the safety of employees .

71
Q

Under the HSWA 1974, do employees have any duties?

A

Yes - to safeguard the health and safety of themselves and other employees

72
Q

Under the HSWA, in what circumstances would an employer be liable to contractors?

A

only in regards to unexpected risks is there potential for liability

73
Q

What regulations did the HSWA 74 allow for?

A

A series of EU directives which do impose civil liability

74
Q

Give an example of a regulation made under the HSWA 1974

A

health and safety (display screen equipment) regulations 1992 - prescribed minimum requirements for those that used screens.
Also under these regulations, gives the employer the duty to carry out a risk assessment on any kind of workplace

75
Q

What is a private nuisance?

A

unreasonable interference with an occupier’s use or enjoyment of land’.

unreasonable depends on locality expectations, duration, time etc

76
Q

What is a public nuisance? Is it Civil or Criminal law?

A

An act or commission which materially effects the reasonable comfort and convenience of life of a section of the public. It is normally a criminal action, but is actionable in civil law by someone who suffers more than the general public

77
Q

What act protects the environment?

A

Environmental Protection Act 1990

78
Q

What does the EPA 1990 regulate, and what type of liability does it impose?

A

Dust, smell, fumes, animals etc. In other words - anything prejudicial to the public. The factors regarding whether an activity constitute a nuisance are the same for private nuisance e.g. locality, duration

and is criminal liability only.

79
Q

Who enforces the EPA 1990? how?

A

local Environmental Health Officer. Issues abatement notices and failure to comply is a criminal offence

80
Q

Who claims against EPA?

A

local council, not individuals

81
Q

What act makes it a criminal offence for a retailer to apply a false description to an item?

A

Trade Descriptions Act 1968

82
Q

What is the defence to claims under TDA 1968?

A

prove someone else is at fault, and that reasonable checks had been carried out

83
Q

What does the Consumer Protection Act 1987 state?

A

It is a criminal offence to give false or misleading information regarding price. It also protects against dangerously defective goods.

84
Q

What is the self regulation body called in advertising? What is important about it?

A

Advertising Standards Authority - voluntary regulation paid by the industry. Almost always compliance when there is a breach of the codes of practices. eg. Paddy Power

85
Q

What Act protects consumers from after sale issues?

A

Sale of Goods Act 1979

Consumer Protection Act 1987

86
Q

Before a product enters the market what must be checked?

A

Significant checks must be made and these must be extensive quality and safety checks in order to avoid liability

87
Q

What implied terms does the Sales of Goods Act 1979 put in every contract of sale? Are they conditions or warranties? Who do you report to if a shop refuses returns?

A

Goods will be of satisfactory quality i.e. they meet a reasonable person’s standards all things considered re price, description
Also considers fitness for purpose e.g. finish, free from defects, safety, durability
Under the Act, these are conditions and therefore right to terminate contract + damages. IF shop refuses, report to Trading Standards Office

88
Q

What are the Implied Terms the SGA implies in private contracts between individuals?

A

None - Caveat Emptor applies

89
Q

Are there any exclusion clauses for quality?

A

Basic rule is not enforceable if a consumer is involved. Can be business to business so far as it satisfies the requirements of reasonableness

90
Q

Does the SGA 1979 apply to services?

A

Led to Supply of Goods and Services Act 1982 - same as SGA but also implied terms of reasonable care, time, cost etc

91
Q

What Act protects the safety of consumers?

A

The Consumer Protection Act 1987

92
Q

What does the CPA 1987 bring in terms of liability? What are the rules?

A

Strict liability even if no fault. the liability is automatic. A consumer must prove that the defendant made the product, the product was defective and it caused injury or loss.
Only applies to consumers. Damage must be greater than £275

93
Q

What is the defence for action under CPA 1987?

A

State of the Art - defendant must prove that the level of scientific knowledge at the time was such that the defect could not have been expected and therefore the defendant could not have been expected to detect the problem.

94
Q

What is the name of the regulation that gives additional protection above usual contract law to those shopping online?

A

Consumer Protection (Distance Selling) Regulations 2000

95
Q

What does the CP (DS)R 2000 cover?

A

Consumer Protection Distance Selling Regulations 2000. All non ‘face to face’ transactions excluding auctions and business to business contracts/

96
Q

What do the CP(DS)R2000 regulations state?

A

The seller must provide

  • name and address
  • full contact details inc. email address
  • price clearly
  • clearly set out steps needed to conclude the purchase
  • detail return policy inc. who is responsible for costs
  • provide written confirmation of the order
97
Q

Who runs the trading standards office?

A

local authorities

98
Q

What are other sources of regulations?

A

TSO, Ombudsmen, Gov. appointed regulators eg. ofcom, ofgem,

Consumer Associations (which? magazine), ‘Rogue Trader - but these can only increase awareness

99
Q

What are the 3 things a plaintiff needs to prove for a successful passing off action?

A

‘goodwill’ attached to trademark
defendant misrepresented the goods as being or connected to the goods of the plaintiff
damage to his business has occurred

Law For Managers (3 decks)

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