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liability for defective or unsafe products
Privity of Contract:
two parties have a direct contractual/buyer-seller relationship
Types of Products Liability cases:
- Market share liability
- Strict Liability
Products Liability - Strict Liabilty:
liability without fault
Products Liability - Market Share Liability:
suing multiple manufacturers who contributed to making the product; some may have merged or gone out of business, but the manufacturers have % shares in the product and the manufacturers responsible (that are still around) will be sued for that %.
Products Liability - Misrepresentation:
fraud elements must be shown; failure to warn consumer properly or give directions on how to use the product properly
Products Liability - Negligence:
failure to exercise due care in manufacture, design, or warnings
- Defective when sold
- Defendant normally engaged in business of selling product
- Unreasonably Dangerous because of defect
- Proximate cause
- Product not substantially altered by plaintiff
Strict Liability Elemtent - Defective when sold:
manufacture defect (designed well but comes off line the way it wasn't intended), design defect (comes off the line as intended but there is a better way to do it), warning defect (failure to warn about a particular use or danger)
Strict Liability Elemtent - Defendant normally engaged in business of selling product
- laws are made to try to prevent every
- possibility of failure or danger and protect the consumer
Strict Liability Elemtent - Unreasonably dangerous because of defect
- product is unreasonably dangerous by defect and the
- ordinary user wouldn't discover it
Strict Liability Elemtent - Injury
needs to be an injury
Strict Liability Elemtent - Proximate cause
foreseeability of injury
Strict Liability Elemtent - Product not substantially altered by plaintiff
defective when sold and unreasonably dangerous because of defect
Strict Liability Defenses:
- Assumption of risk
- Product missuse
- Comparative/Contributory negligence
- Commonly known dangers/knowledgeable user
Strict Liability Defense - Assumption of risk:
understood risks normally associated with the act that are voluntarily undertaken WHEN UNREASONABLE TO DO SO.
Strict Liability Defenses - Product missuse:
consumer uses a product that wasn't intended or anticipated
Strict Liability Defenses - Comparative/Contributory negligence:
- Comparative: if plaintiff is negligent too (but not as much as the defendant), then they can recover for damages based on how much wasn't their fault in percentages (if it was 70% the defendant's fault, then they get 70% of damages)
- Contributory: if the plaintiff is negligent too, then the plaintiff can't recover anything
Strict Liability Defenses - Commonly known dangers/knowledgeable user:
if everyone knows the danger then the manufacturer doesn't need to warn against it.
- something invented by creativity that someone has the rights for and you can apply for a copyright, patent, or trademark.
- *tanglible means the ownership can be seen
What is covered under copyrights?
literary and artistic works (films, movies, books, music, etc.)
Types of copyrighted material:
- -music (sheet music, lyrics, recording)
- -literature (books, articles, magazines)
- -art (painting, drawings, architectural)
- -film (movies, films, etc)
- -dance (choreography)
Types of material that can't be copyrighted:
- •titles (names, phrases, slogans are all in trademarks)
- •ideas (only the physical expression is protected)
- •facts (addresses and stuff, unless you present it in a new way)
- -ORIGINAL work of authorship (means it's something new)
- -affixed to a TANGIBLE MEDIUM OF EXPRESSION (physical or readable by a machine)
When is something copyrighted?
When it's written down!!
What is the © symbol for?
- No legal significance, it just lets the world know that it's
Do copyrights have to be registered?
Don't have to be registered, but you have more protection if you do.
- •derivative works
- •public displays or performances
Copyright protection - reproduction:
right to make copies of the work
Copyright protection - derivative works:
turn one thing (ex: song or book) into another thing (ex: remix or movie).
Copyright protection - distribution:
right to sell, rent, lease, etc.
Copyright protection - public displays or performances:
right to display or perform the work, holder of copyright can but not everyone else can.
Duration of a copyright:
lifetime of author plus 70 years after
anytime someone copies, uses, sells, or distributes someone else's copyrighted material without permission.
Fair use defense:
limited use of the material for various reasons
Factors considered in Fair Use defense:
- •purpose and character of use: is it for profit or not for profit?
- •nature of the work: fiction (highly creative) or non-fiction?
- •amount/substantiality of work used: the whole thing or an excerpt?
- •effect on market for/value for work: decrease or increase market value?
exclusive right to manufacture and sell the product for a limited amount of time
Duration of Patents
if a company wants to make one, they can get a license (it doesn't last forever) from the company that holds the patent to build the product, but they can't use the same name as the parent company.
If you want to protect an invention, what do you need?
Processes/strategies/info giving one company a competitive advantage that is not readily available to the general public
Duration of Trade Secret:
as long as it's kept a secret
Are Trade Secrets registered?
NO! Or else they would be in public domain
- Company/brand/product/identification/slogan to maintain a competitive advantage in the marketplace and identify companies in the marketplace
- *doesn't need to be registered, but better if you want more protection
specific name of the product/company that is associated with the image
how the product/company looks (like a restaurant menu or dress code or look of the establishment)
trademark or logo for a company that provides services
Duration of common law trademark:
as long as the product is in use
Duration of registered trademark:
original registration, renewal between years 5-6, and then every 10 years
license to use the trademark and the right to sell their already established product as long as the establishment looks like all the other ones (like all fast food places and car dealers and the logo on the fountain drink machine)
- •Unauthorized uses
- •Same or similar marks
- •Competitive or related products vs. noncompeting products
- •Likelihood of consumer confusion
- •Taking advantage of someone else's famous name or mark
- •consumer confusion? (consumers get names confused)
- •diluting market share? (someone thinks they're getting the real product when they're getting a knock-off
Trademark infringement on domain names online
Problems with meta tags:
using someone else's trademarked words/phrases for meta tags
How to use meta tags:
make sure it doesn't make you look like you're connected to them and as long as it is used to describe yourself