General Questions - lecture 6-10 Flashcards
(99 cards)
1
Q
What are the two Acts that protect intellectual property?
A
Copy Right Designs and Patents Act 1988 and Trademark Act 1994
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.
3
Q
How long does a patent normal take from application?
A
4 years. Slow and costly
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.
5
Q
What types of infringement are there for patents?
A
‘actual’ - copying good
‘contributory’ - selling/importing the good
6
Q
How long does copyright last?
A
life of the author plus 70 years
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.
8
Q
If an employee creates something, who owns the copyright?
A
A company. It can license out rights to copy etc
9
Q
What constitutes copyright infringement?
A
copying, broadcasting, translating etc. but must involve ‘substantial’ part - no definition of substantial
10
Q
What is an Anton Piller injunction?
A
type of injunction which is includes searching premises and seizing copies
11
Q
What is fair dealing? Is it a copyright infringement?
A
No it is not an infringement, it is copying for yourself etc
12
Q
What is the process to obtaining copyright?
A
There is no process, it arrises automatically.
13
Q
What do designs cover?
A
Outward shape (not design on paper as these are under copyright ) Can be registered or unregistered
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
15
Q
What can’t a trademark be?
A
offensive, misleading or too common
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.
17
Q
Ownership of Intellectual proper can be by…?
A
An individual, a number of people or a business. It can be sold.
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
19
Q
What is the purpose of a non disclosure form?
A
Allows you to discuss intellectual property without it being stolen
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
21
Q
What is piracy and what is it to do with?
A
copyrights - copying, distributing and importing infringed work
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
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
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
25
What is the difference between procurement and logistics?
Procurement: buying of goods
Logistics: physically receiving them
26
What is the definition of a contract?
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
27
What is an offer?
statement of terms on which the offeror is willing to be bound. If accepted then binding. An invitation is not an offer
28
What are the relevant facts of offers?
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
29
What are relevant facts surrounding acceptance?
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
30
What is consideration?
both parties must receive a benefit and suffer a detriment - it is the prise paid for a promise
31
What are the first 3 rules of consideration?
Consideration must not be past
consideration must be sufficient but need not be adequate
consideration must move from the promisee
32
What are the last 3 rules of consideration?
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
33
When can you waver existing rights?
when it is supported by consideration
34
What is a condition?
fundamental part of the contract that if broken renders it voidable. Can also claim damages.
35
What is a warranty?
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
36
What are the 3 potential vitiating factors of contracts?
Mistake, Misrepresentation, Illegal Contract
37
Does a mistake make a contract void?
A mistake only makes a contract void if it is a qualifying mistake. These occur infrequently in very restrictive circumstances
38
what is misrepresentation?
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.
39
What is an exclusion clause and why are they allowed to exist?
An attempt to limit liability. allowed due to the Principle of Freedon of Contract
40
What Acts govern the laws surround exclusion clauses?
Unfair Terms of Contract Act 1977
| Unfair Terms in Consumer Contracts Regulations 1999
41
What are the common law rules surrounding Exclusion clauses?
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
What are the general rules surrounding the judgement of exclusion clauses?
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
What is the contra proferentem rule?
Going against the party that is relying on exclusion clauses. interpretation against the draftsmen when dealing with ambiguities.
44
What is said under section 2 of the Unfair Terms of Contract Act 1977?
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
What are the guidelines on reasonableness surrounding exclusion clauses?
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
What are the 2 exceptions to which exclusion clauses cannot be used and according to what law?
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
The UTCCR 1999 was based upon what?
An EU directive. it is secondary legislation that did not need to go through parliament
48
What does UTCCR stand for and in what year was it introduced?
Unfair Terms in Consumer Contracts Regulations 1999
49
What does regulation 5 of the UTCCR 1999 state ?
A term is unfair if it gives rise to significant imbalances of party rights caused to the detriment of the consumer
50
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?
regulation 7 of the Unfair Terms in Consumer Contract Regulations 1999
51
What are the rules regarding misrepresentation?
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
What are the three types of misrepresentation and which is the most common?
Innocent, fraudulent, negligent.
Negligent is the most common - the other two are much harder to prove
53
What is a negligent misrepresentation?
a misrepresentation where the seller believes the statement to be true but without reasonable grounds for doing so
54
With whom does the burden of proof lie with when it comes to negligence?
The defendant - he must disprove negligence
55
What are the remedies for misrepresentation?
Damages and rescission - although if misrepresentation is innocent, only rescission
56
Under what law does misrepresentation get covered by?
Common Law as well as the Misrepresentation Act 1967
57
What are the remedies for a breach in contract?
Damages - to bring claimant to where they would be if the contract had been performed properly - restitutio in integrum
58
What is the remoteness of damages rule?
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
What are liquidated damages?
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
How many directives from the EU has there been since joining?
20
61
Negligence law comes from where?
Common Law
62
Health and Safety laws are defined in what act?
Health and Safety at Work Act 1974
63
Who brings what types of cases regarding health and safety to court?
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
What is negligence?
carelessness of a person that results in injury or damage to others or properties. It must be foreseeable.
65
What are the two civil cases surrounding negligence an employee can bring to an employer?
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
What are the 3 direct duties of employers that are non delegable?
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
What conditions need to be satisfied for employers to face vicarious liability claims?
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
Are employers vicariously liable for contractors?
No
69
The Health and Safety at Work Act 1974 was made after what report, and what did it state?
The robes Committee report in 1972 - stated 100 people killed a year at work
70
What are the five key duties of employers mentioned in the health and safety at work act 1974 ?
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
Under the HSWA 1974, do employees have any duties?
Yes - to safeguard the health and safety of themselves and other employees
72
Under the HSWA, in what circumstances would an employer be liable to contractors?
only in regards to unexpected risks is there potential for liability
73
What regulations did the HSWA 74 allow for?
A series of EU directives which do impose civil liability
74
Give an example of a regulation made under the HSWA 1974
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
What is a private nuisance?
unreasonable interference with an occupier's use or enjoyment of land'.
unreasonable depends on locality expectations, duration, time etc
76
What is a public nuisance? Is it Civil or Criminal law?
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
What act protects the environment?
Environmental Protection Act 1990
78
What does the EPA 1990 regulate, and what type of liability does it impose?
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
Who enforces the EPA 1990? how?
local Environmental Health Officer. Issues abatement notices and failure to comply is a criminal offence
80
Who claims against EPA?
local council, not individuals
81
What act makes it a criminal offence for a retailer to apply a false description to an item?
Trade Descriptions Act 1968
82
What is the defence to claims under TDA 1968?
prove someone else is at fault, and that reasonable checks had been carried out
83
What does the Consumer Protection Act 1987 state?
It is a criminal offence to give false or misleading information regarding price. It also protects against dangerously defective goods.
84
What is the self regulation body called in advertising? What is important about it?
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
What Act protects consumers from after sale issues?
Sale of Goods Act 1979
| Consumer Protection Act 1987
86
Before a product enters the market what must be checked?
Significant checks must be made and these must be extensive quality and safety checks in order to avoid liability
87
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?
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
What are the Implied Terms the SGA implies in private contracts between individuals?
None - Caveat Emptor applies
89
Are there any exclusion clauses for quality?
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
Does the SGA 1979 apply to services?
Led to Supply of Goods and Services Act 1982 - same as SGA but also implied terms of reasonable care, time, cost etc
91
What Act protects the safety of consumers?
The Consumer Protection Act 1987
92
What does the CPA 1987 bring in terms of liability? What are the rules?
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
What is the defence for action under CPA 1987?
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
What is the name of the regulation that gives additional protection above usual contract law to those shopping online?
Consumer Protection (Distance Selling) Regulations 2000
95
What does the CP (DS)R 2000 cover?
Consumer Protection Distance Selling Regulations 2000. All non 'face to face' transactions excluding auctions and business to business contracts/
96
What do the CP(DS)R2000 regulations state?
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
Who runs the trading standards office?
local authorities
98
What are other sources of regulations?
TSO, Ombudsmen, Gov. appointed regulators eg. ofcom, ofgem,
Consumer Associations (which? magazine), 'Rogue Trader - but these can only increase awareness
99
What are the 3 things a plaintiff needs to prove for a successful passing off action?
'goodwill' attached to trademark
defendant misrepresented the goods as being or connected to the goods of the plaintiff
damage to his business has occurred
