BADM 300 Test 2 – Flashcards
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Jackie, an accountant, distributes an advertisement to her business clients and potential customers accusing her competitor Ked of being a convicted thief. The statement is NOT defamatory if
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the statement is true Defamation refers to ruining people's good reputations by saying things that are false. Additionally, truth is an absolute defense to defamation.
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The duty to exercise reasonable care requires storeowners to warn business invitees of all risks.
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False Landowners have a duty to warn business invitees of foreseeable risks (those that are known or should have been known). These include construction zones and wet floors. Also, Landowners do not have to warn of obvious risks.
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Liu enters Mountain Triathlon, an athletic competition in which Liu has never competed. Regarding the risk of injury, Liu assumes the risks
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risks normally associated with the triathlon Assumption of risk is a defense to negligence. Under assumption of risk, the Plaintiff must have knowledge of the risk, but voluntarily engages in the act anyway. In this instance, Plaintiff voluntarily signed up for a triathlon, accepting the risks normally associated with triathlons, nothing more, nothing less.
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A successful defense releases the defendant from partial or full liability for a tortious act.
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True. Those being sued for tortious activity may raise defenses, and if they are successful, the defendant may avoid liability.
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Brady knows that the brakes on his car do not work, but he tells Celia, a potential buyer, that there are no problems with the car. On this assurance, Celia buys the car. On learning the truth, she may sue Brady for
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fraudulent misrepresentation. Fraudulent misrepresentation refers to a misrepresentation of a material fact (here, that there are no problems with the car) with an intent to induce another to rely (Brady wants to sell the car to Celia). Additionally, because Celia relied on this information to buy the car, this was fraudulent misrepresentation.
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There are three broad classifications of torts: intentional torts, unintentional torts, and accidental torts.
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False. Torts are either intentional or unintentional.
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An Iowa state statute requires amusement parks to maintain equipment in specific condition for the protection of patrons. Jack's Fun Park fails to maintain its equipment. Keely, a patron, is injured. Jack's has committed
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negligence per se. Negligence per se occurs when Defendant violated a statute (amusement park statute) designed to protect the type of plaintiff that was injured (here, a patron).
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The duty of care standard for an Attorney is the reasonable Attorney standard, not the reasonable person standard.
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True. Professionals owe a higher duty of care based on special education, skill or intelligence. The standard is what a reasonable person in that profession would do (exs: physician, attorney, CPA).
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Duffy is a passenger in a car that Caleb is driving when an accident occurs. Both Caleb and Duffy are emotionally rattled, but neither is physically hurt. Caleb is not liable to Dufy on a negligence theory because
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Duffy was not injured. Negligence requires an injury.
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Under the doctrine of comparative negligence, both the plaintiff and defendant's negligence is computed. The defendant will have to pay that portion of the negligence attributed to him.
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True. Comparative negligence computes the proportion of damages attributed to Plaintiff's actions and the portion of damages. The court or jury then apportions liability and damages accordingly. The Defendant must then pay his proportionate share of damages.
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Ultra-hazardous or abnormally dangerous activities involve which of the following?
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D. Serious potential harm and High degree of risk that cannot be made safer with good care Ultra-hazardous or abnormally dangerous activities involve 1) serious potential harm; 2) high degree of risk that cannot be made safe; and 3) NOT commonly performed in the community or area.
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Both federal and state anti-spam laws require "opt out" provisions to unsubscribe from further email ads.
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True Spams are regulated at both the state and the federal level. State law in thirty-six states and the federal CAN-SPAM Act require "opt-out" provisions so recipients may unsubscribe to further email ads.
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Product liability can be based on which of the following legal theories?
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Product liability can be based on four different theories: 1) negligence; 2) misrepresentation; 3) strict liability; and 4) warranty theory.
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A trademark is only protected under federal law.
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False Trademark is protected under both federal and state law. Trademark is protected under the federal Lanham Trademark Act. Trademark is also protected under state law either under a state statute or common law.
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Ralph designs and manufacturers glass bottles that will eventually be filled with Coca-Cola. One of the bottles that comes off the manufacturing line departs from the bottle design in that the bottle is too thin, although due care was used in its preparation and marketing. If someone is injured by this particular "thin" bottle, what type of defect would the injured party claim occurred:
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Manufacturing Defect This is a manufacturing defect because this particular thin bottle departed from Coca-Cola's intended design for its bottles even though all possible care was exercised in the preparation and marketing of the product.
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Under the America Invents Act, the first person to file an application for a patent on an invention will receive patent protection for that invention.
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True The America Invents Act gives patent protection to the first person to file an application for a patent on a product or process - NOT the first person who obtains actual patent.
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Which of the following categories of trademark is never protected?
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Generic Generic marks are never protected. Descriptive marks are protected if they acquire secondary meaning. Suggestive and arbitrary marks are inherently distinctive, so they are always protected without requiring any secondary meaning.
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Under the "first sale doctrine", a person who has previously bought a copyrighted book, can then resell the book to someone else without royalties having to be paid to the author
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True No infringement occurs when a person who lawfully owns a copyrighted work re-sells the work, because the original copyright holder no longer has control of content. For example, you buy the BADM300 textbook. Under the first sale doctrine, you can resell your textbook after you finish the course without having to pay any royalties to the publisher.
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Which of the following CANNOT be copyrighted?
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Ideas Only the expression of an idea can be copyrighted - NOT the idea itself.
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Trade dress can be registered as a trademark, but is also protected by federal common law as well.
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True Trade dress received the same protection as trademark under the Lanham Act. Trade dress can be registered as trademark, but it is also protected by federal common law without registration.
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Intent may be transferred.
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True: When an individual intends to harm one individual but unintentionally harms another, the law considers the "intent to harm" focused on the first victim as being transferred to the second victim to support an intentional tort.
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A professional athlete injured during practice is deemed to have consented to the physical contact attendant to practice.
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True: Consent in this instance is akin to assumption of risk. To show consent or assumption of risk, it must be shown that the person who "assumed the risk" had knowledge of the risk and voluntarily assumed the risk.
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A contractual relationship must be present in order to commit a tort of wrongful interference with business relationship.
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False: The tort of interference with business relationship does not require that a contractual relationship exist between two parties, but something less, such as an established business relationship of some length. Where a third party knows that such a relationship exists and intentionally induces one of the parties to the relationship to break it off or breach it by predatory methods, the tort of wrongful interference with business relationship has been committed giving rise to damages.
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Assumption of risk is a defense to the tort of negligence.
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True: As mentioned, assumption of risk requires (1) Knowledge of the risk being assumed, and (2) Knowing and voluntary assumption of the risk.
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The tort of intentional infliction of emotional distress protects a person's right to peace of mind.
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True: This tort involves the commission of extreme and outrageous conduct by a person (defendant) resulting in severe emotional distress to another. This type of tort is difficult to prove. A few states require that there by some physical ailment resulting from the emotional distress (ulcers, hives, etc.). Most states require this physical component for the tort of negligent infliction of emotional distress.
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Slander is oral defamation.
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True: Slander requires a showing of a (1) false statement of fact; (2) the statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation; (3) the statement was published to at least one person other than the plaintiff. If the plaintiff is a public figure, the plaintiff must show malice on the part of the defendant as well.
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Non-public figures need not prove publication in their suits for defamation.
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False. While only public figures have to prove malice, that is, that the publication was made knowing it to be false or recklessly, not checking the truth one way or another, both public and non-public figures must prove publication of the slanderous or libelous statement.
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Only libel requires proof of publication.
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False. Slander requires proof of publication as well. Publication is the heart of defamation claims.
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Public figures must prove malice to establish a case of defamation against a newspaper.
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True. Public figures, because they have voluntarily sought publicity, must show that the defamation was made maliciously, that is, the paper must have made the statement knowing it to be untrue, or made the statement recklessly, without an attempt to ascertain whether the statement was true or false.
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"Car dealers are crooked" is an example of actionable defamation.
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False. This statement is essentially a general opinion and would not be actionable.
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Testimony in a courtroom is not privileged for purposes of defamation actions.
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False. Testimony given in court enjoys absolute immunity from defamation actions.
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The tort of contract interference requires knowledge of an existing contract between two parties.
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True. Intentional interference with contractual advantage is the tort of a 3rd party wrongfully inducing (by predatory means) a party to a contract to breach the existing contract such that such breaching person could then contract with the 3rd party.
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Contract interference is remedied by a suit for breach of contract.
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False. The remedy for this type of action is in tort. The person or company whose contract was breached (A) as a result of the actions of a 3rd party (C) wants the ability to sue C for such interference. But C is not a party to the contract between A and B. While A can still sue B for breaching the contract, that would still not be sufficient with regard to recovery for C's actions of interference.
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The tort of false imprisonment requires proof of some actual injury.
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False. The tort of false imprisonment requires that the defendant: (a) intends to confine another or third person within boundaries that the defendant has determined or fixed; (b) the defendant's act directly or indirectly results in such a confinement of the other, (c) the other is conscious of the confinement or is harmed by it (d) the plaintiff did not consent to such confinement.
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Negligence is available as a tort remedy only when the breach of duty is a statutory violation.
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False. Negligence which arises as a result of violation of a statute meant to protect the public is called "Negligence Per Se." In order to prove Negligence Per Se, the plaintiff much show that; (1) The defendant violated a statute; (2) The statute in question is a safety statute; (3) The defendant's acts caused the type of harm that the statute was intended to prevent; (4) the plaintiff was a member of the class that the statute was designed to protect. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently -- the conduct is automatically considered negligent, dispensing with proving duty and breach of duty. The Plaintiff must, however, prove whether the violation of the statute was the "cause," both actual and proximate, and that the Plaintiff was injured as a result.
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The use of someone's voice for commercial purposes without their permission is appropriation.
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True. One of several torts falling under the category of invasion of privacy. Appropriation occurs when a defendant uses a plaintiff's name, likeness, or image without his or her permission for commercial purposes.
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Assumption of risk is a complete defense to negligence.
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True. Assumption of risk is a complete defense to a claim of negligence.
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Few states follow the doctrine of contributory negligence.
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True. Contributory negligence acts as a complete bar to a plaintiff's action. That is, if the plaintiff is found to be negligent in any degree that contributed to his injuries, he cannot sue the defendant. Because this is such a harsh result, few states follow the contributory negligence rule. Rather, states are more inclined to follow "comparative negligence" which permits a negligent plaintiff to maintain a suit for negligence but reduces the amount of damages the plaintiff is awarded by the percentage of negligence attributed to plaintiff.
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When a person suffers an injury due to deliberate deception, there may be a tort of fraud.
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True. Intentional misrepresentation is the tort of fraud. Plaintiff must prove that; (1) defendant made a false representation of past or existing fact, (2) with knowledge or belief that the representation was false or made recklessly without regard to its truth (3) the defendant intended to induce the plaintiff to act or refrain from acting on the representation, (4) the plaintiff justifiably relied on the representation, and (5) the plaintiff was damaged as a result of his reliance.
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The tort of intentional misrepresentation requires a showing that the defendant knew there was false information being passed.
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False. The defendant can be liable for intentional misrepresentation if he or she recklessly makes a statement of fact, without regard to its truth. While the defendant may not know that the statement of fact is false, failure to have sufficient ground upon which to make the statement is reckless and a adequate basis or "substitution" for knowledge of the statement's falsity.
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If a stranger tells you to invest all your money in a company, and you do, and it collapses, losing all your money, you have a good fraud suit against that person.
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False. Intentional misrepresentation requires that the plaintiff "reasonably relied" on the false statements of the defendant. Here, the facts state that the plaintiff and defendants are strangers. Plaintiff invested "all his money" on the statements of a stranger would not be considered by a reasonable person as "justifiable reliance" on the false statements.
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In a suit for fraud, the plaintiff must establish a good reason to rely on the bad information provided by the defendant.
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True. The Plaintiff must show "reasonable reliance" on the false statement. That is, a reasonable person in Plaintiff's position would have been justified in relying on the false statement of fact.
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In a suit for intentional misrepresentation, punitive damages may be awarded.
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True. Because Fraud is an intentional tort, punitive damages may be awarded. Punitive damages are meant to punish behavior so that it will not occur again. Because this rationale is applicable only to intentional rather than negligent behavior, punitive damages would be applicable.
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You may be sued in tort for the damages incurred for interfering with a contract between two other parties.
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True. This tort is called intentional interference with contractual relationship.
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If you make an offer to sell a product to a person who is already buying the product from another party, you have interfered with contractual relations and will be liable in tort.
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False. The interference required to prove this tort is action that is predatory, such as price-cutting to drive a particular person out of business. There is nothing that prevents a businessperson from making an offer to sell a product to a customer who is already purchasing this product. There is always the next sale, or the customer may deem it worthwhile to change his mind and contract with the new offeror.
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When the tort of interference with contractual relations occurs, the party responsible for the tort is the party who breached an existing contract.
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False. While the breaching party may be liable to the non-breaching party in contract, it is the party inducing the breach of contract that is liable in tort.
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Intentional misrepresentation is also known as fraud.
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True. While there can be negligent misrepresentation, which is similar to intentional misrepresentation except that the person making the false statement does not do so intentionally, but rather does so without exercising due care as to the accuracy of the statement, fraud is always an intentional tort.
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Spoken defamation is known as:
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Slander. A defamatory statement is a false statement of fact that is negligently or intentionally communicated or published to a third party, and that causes injury or damage to the subject of the statement. Libel and slander are different types of defamation. Libel is a written defamatory statement, and slander is an oral defamatory statement. There are certain types of statements that are automatically considered defamatory in some states. These types of statements are often called defamatory "per se." Statements that are defamatory "per se" include statements that claim that the plaintiff: (a) has committed a serious, notorious, or immoral crime; (b) has an infectious or terrible disease, or (c) is incompetent in his job, trade, or profession.
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The tort of negligence does not include the element of:
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Intent. Negligence deals with actions that are deemed to be below an acceptable standard of conduct of a reasonable person in a similar situation. Negligence does not deal with intentional conduct.
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What must a plaintiff show to successfully sue for malicious prosecution?
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That a prior proceeding was instituted against him or her maliciously and without probable cause or factual basis, and that the earlier case was resolved in the plaintiff's favor. The key word in this tort is "malicious." The defendant in a malicious prosecution against must be shown to have instituted a prior action against the present plaintiff without reasonable grounds or factual basis (i.e. maliciously) and the prior proceeding was resolved in his or her favor.
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In the classic case, Palsgraf v. Long Island Railroad (1928) discussed in the text, the court denied Mrs. Palsgraf's claim of negligence on the ground that her injuries were __________, therefore the railroad employee's actions were not __________ of her injuries.
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not foreseeable, proximate cause A reasonable person could not foresee the injuries to Ms. Palsgraf from the scale on the railroad platform. As a result, while the scales were the actual cause of her injuries, they were not the "proximate" or legal cause of her injuries.
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Under the doctrine of __________, the plaintiff may recover only the proportionate amount of damages attributable to the defendant's negligence.
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Comparative negligence. This doctrine allows a plaintiff who has also been negligent to proceed against a plaintiff, while having the ultimate damage award reduced in proportion to the percentage of negligence attributed to the plaintiff.
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Which of the following is the best defense to negligence?
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The plaintiff contributed to his own injuries. This statement can support both contributory negligence, which is a complete bar to recovery by the plaintiff, or comparative negligence, which would reduce any award to the plaintiff. The fact that the plaintiff and defendant are friends is not a defense, nor is the lack of intent to harm the plaintiff as negligence is not an intentional tort. Finally, the fact that the defendant was concerned for the safety of the plaintiff is not relevant as the concern did not cause the defendant to change his behavior to an acceptable level of conduct.
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__________ occurs when a __________, such as the name, address, Social Security number, and/or name of the employer, and then uses this information to access the victim's credit.
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Invasion of Privacy, non-public information Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. There are a number of different ways, and therefore causes of action, where a person's privacy can be violated. An otherwise non-public individual has a right to privacy from: (a) intrusion on one's solitude or into one's private affairs; (b) public disclosure of embarrassing private information; (c) publicity which puts him/her in a false light to the public; and (d) appropriation of one's name or picture for personal or commercial advantage. Celebrities generally can recover for this type of breach of privacy. A defense to a charge of invasion of privacy is that the person making the disclosure had a legitimate reason for doing so. For example, investigation of a person's credit when the person has applied for a loan is a legitimate reason.
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Public figures
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must establish malice in order to recover damages for defamation. Because certain individuals have sought out the public limelight (Public figures), they cannot be said to complain when they are the subject of publicity. However, if such individuals are the subject of defamation, either slander or libel, the public figures can recover damages if they can prove the defamation was made with malice. That is, the defamer either knew the statements were false or recklessly made the statements, not ascertaining their truth or falsity before making such statements.
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Hamburger Hamlets, Inc. is a chain of fast-food restaurants. Its major competitor is Sam's Sandwiches, Inc. Sam's Sandwiches' public relations vice president issued the following statement, which he knows to be false: "We have documented proof that Hamburger Hamlets uses horse meat in its burgers." Which of the following statements is true?
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Sam's is liable for defamation. The facts do not indicate what the term "issued" refers to as such whether the statements issued were made orally (slander) or in writing (libel). However, the facts do indicate that the VP of Sam's knows these statements about Hamburger Hamlets are false. Given that the statement pertains to the quality of the food served at Hamburger Hamlet, the statement would most certainly damage HH's reputation and might even be an accusation of illegal conduct (using horsemeat). As such, Sam's is liable for defamation.
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Proximate cause:
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was established in the Palsgraf case The Palsgraf case was an extremely significant case in the field of torts. While plaintiffs have always been required to show actual causation (the "but for" test), Palsgraf introduced the concept of legal or proximate cause to negligence. Proximate cause limits the liability of the plaintiff where the harm that occurred was simply not foreseeable by a reasonable person, even though it was the actual cause of injuries.
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Ms. Leitch was having a glass of champagne in the outdoor section of a restaurant, "Barney's" in Delray Beach, Florida on New Year's Eve. She was hit by a stray bullet and injured. There had been stray bullet injuries in the past on the streets of Delray on holiday weekends. One such past incident resulted in a minor injury to a customer of Barney's on the 4th of July weekend, two years ago. However, Barney's did not post any warnings to its patrons before or on New Year's Eve warning of gun fire or take any other security precautions on behalf of their patrons. Ms. Leitch has filed suit against Barney's to recover for her medical costs, lost wages, and physical pain and suffering. What will Barney's use as a defense in the case?
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That the stray bullet incidents were remote and isolated. or That you cannot be held liable for the criminal activities of third parties. a and perhaps c. With regard to Barney's liability, the issue is whether or not the past incidents of gunfire were sufficient such as to place a "duty" on Barney's to either warn or take other reasonable measures to increase the safety of their patrons. A duty results if a reasonable person would conclude that it was foreseeable that an injury would occur on a holiday weekend by gunfire. If so, the fact that Barney took no precautions to protect its patrons would be a breach of that duty. Additionally, criminal actions are normally considered as unforeseeable, intervening, superseding events. That being the case, Barneys would not have a duty to protect its patrons, making c a correct answer as well. However, criminal actions, if they occur with such a degree of frequency that they become foreseeable, may in fact give rise to a duty on Barney's part to protect against them. An example is the Landlord placing lights in stairwells that have had frequent incidents of injury to tenants. Or a large retailer such as Wal-Mart placing extra lighting and security cameras in parking lots that have had frequent occasions of injury inflicted on shoppers returning to their cars.
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Singer Courtney Love tweeted several posts on her Twitter feed as well as her MySpace page that a clothing designer "bullied victims, stole, sold drugs, drank three bottles of vodka," and "is a danger to society." The designer sued Ms. Love for defamation. Which of the following would be a defense for Ms. Love?
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That the statements are true. Truth is an absolute defense to the tort of defamation
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The Arizona Daily Desert View carried a story on a recent E-Coli problem in a Phoenix fast food restaurant. The story included a history of Arizona E-Coli incidents and indicated that the Saguaro Grill had an E-Coli problem in 1999 that resulted in the hospitalization of seven customers. Suppose that the restaurant that had the E-Coli outbreak in 1999 was Saguaro Buffet, not the Saguaro Grill. The Arizona Daily Desert View:
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is liable to the Saguaro Grill for libel. Because the names of the restaurants where the E-Coli problem was present was stated incorrectly as the Saguaro Grill and not the Saguaro Buffet, the Grill would have a cause of action for libel. Libel is a particular type of defamation, which occurs when defamatory statements are made in writing. While "b" could be correct, there is a more precise answer found in "a." The newspaper that printed the story naming the Grill rather than the Buffet as having had incidents of E-Coli in the past, would be liable for libel.
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Which of the following have an absolute privilege against defamation for their speech?
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participants in a judicial proceeding Participants in a judicial proceeding, have an absolute privilege for their speech during the judicial proceedings.
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The "But for" test:
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A plaintiff must prove two types of causation in a negligence action. The first is "actual" causation. The second is "proximate cause." Actual causation can normally be ascertained by applying a simple "but for" test. Specifically, 'but for" the defendant running the red light, the plaintiff's car would not have been hit.
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Which of the following constitutes a defamatory statement (assuming the statements are untrue)?
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"He was dismissed for embezzlement from his last job." The statement contained in "a" is an opinion rather than an actual fact. The statement in "b" is a factual statement attributing criminal conduct to the plaintiff. This type of statement would be defamation "per se" depending on how it was made, either orally or in print. The statement in "c" is, again, an opinion. The statement in "d" is too general to be actionable.
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Which of the following is not an intentional tort?
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Negligence Battery, False imprisonment and invasion of privacy are all intentional torts. Negligence is NOT an intentional tort.
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Punitive damages are:
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generally not available in tort cases. Punitive damages, designed to punish and deter future similar conduct, are generally only awarded in instances of intentional torts.
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Intentional torts occur when:
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the tortfeasor is found to have intended to invade a protected interest and the tortfeasor knew, or should have known, of the consequences of the act that resulted in an injury Intentional torts occur where the tortfeasor (the person committing the tort) commits the tort intentionally. The tortfeasor either knows or should know that his or her conduct would result in an injury. Negligence is an unintentional tort where the conduct of the defendant fails to conform to a societal norm, that of a reasonable person in a similar situation.
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Businesses can:
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can be involved in both negligence and intentional torts Businesses can be found liable for both intentional and negligent torts. As will be seen when we study agency, a business can only act through its agents and employees. If the agents and employees, during the course and scope of their employment, commit either negligent or intentional acts resulting in harm, the business will be liable for such injuries.
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Which of the following is not usually asserted by business about tort awards:
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they are not costly This is an example of a double negative and a badly worded question. Businesses generally DO complain that tort awards are costly, making "a" the correct answer.
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Negligence is:
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carelessness in a legal sense Negligence is, at its heart, the failure to exhibit correct behavior such that fellow citizens will not be harmed. In that sense, negligence might be deemed to be "carelessness."
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Which of the following is not needed to establish the tort of intentional misrepresentation:
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-scienter or intent to defraud -intent to induce reliance -justifiable reliance by the plaintiff on the misrepresentation -damages to the plaintiff -all of the other choices are necessary elements to show the tort existed All of the elements listed above, a-d, are required to prove a case for the tort of intentional misrepresentation.
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Infringement means a seller causes confusion about the origins of a product by improper use of a trademark.
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True: When dealing with trademark infringement, the central characteristic is consumer confusion
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Dilution means a seller causes confusion about the origins of a product by improper use of any trademark.
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False. Unlike infringement, you do not have to show customer confusion. You have to show a "famous trademark" and dilution of its power (value).
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Intellectual property includes patents and copyrights.
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True: The basic categories of intellectual property is patents, trademarks, copyrights and trade secrets
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The Lanham Act helps provide trademark protection
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True. Lantham Act is the principal protection of trademarks.
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After a patent expires, becomes part of the public domain.
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True. Upon expiration, it becomes part of the public domain. This is how generic drugs are produced.
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A copyright is a government-granted right to exclude others from making, using, or selling an invention.
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False. A patent is the IP that protects inventions.
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Copyright protection does not extend to derivative works.
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False. A copyright applies to derivative works, such as a movie, that is made into a Broadway show (Beauty and the Beast).
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A patent holder must personally make use of the invention.
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False. A trademark owner has to put the trademark into use.
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Trade secrets are protected for an indefinite time
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True. If you can keep it private and secret, it will stay that way.
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Susan may get a patent on the new type of rose she developed through asexual reproduction.
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True. A U.S. patent covers this type of "invention." It is called a Plant Patent
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The Uniform Trade Secrets Act is a federal law.
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False. It was a "model" law that has been adopted by about 47 states.
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Arbitrary marks are real words whose ordinary meaning has something to do with the color or shape of the trademarked product.
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False. It is just the opposite. It is an ordinary work that has nothing to do with the product. Think Apple.
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A(n) __________ mark is a coined term having no prior meaning until used as a trademark in connection with a particular product.
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A fanciful mark is a name that is essentially made up. Think Exxon.
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A(n) __________ mark is a real word whose ordinary meaning has nothing to do with a trademarked product.
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arbitrary. Arbitrary marks are normal words that have nothing to do with the product.
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A __________ is used in conjunction with services.
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A service mark. Think Fed Ex.
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Which of the following is considered in determining whether use of copyrighted material constitutes fair use?
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(1) The purpose and character of the use, (2) the economic effect of the use on the copyright owner, (3) the nature of the work used, and (4) the amount of the work used. all of the elements set forth in d go into determining if there has been "fair use" of the copyrighted matter.
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once a copyright owner sells a copyrighted product, the owner cannot prevent its resale or transfer to others.
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First Sale Doctrine An author gets royalties from only the first sale of the copyrighted work.
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Which of the following is NOT true regarding current U.S. copyright law?
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Use of a copyright notice is required. There is no requirement to register an original work, hence there is no "notice" required. If you do copyright the work, then it does provide notice.
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Trademarks, trade names, patents, and copyrights represent a category of property called:
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Intellectual property as set forth above, is "intangible." It reflects creative thinking.
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Protection for intellectual property dates back to
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the Constitution The U.S. Constitution references patents and copyrights.
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Infringement is:
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wrongful, unauthorized use of intellectual property in violation of the owner's rights The gravamen of infringement is that you are using the IP without the owner's permission and in violation of their exclusive rights.
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As long as the owner continues to use and protect the trademark, the trademark's exclusive use:
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can be used by others in non-profit endeavors An owner has to use, protect, and file a renewal application as well. A trademark is generally good for 10 years after the first renewal period.
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Trade dress refers to:
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a commercial symbol that concerns the "look and feel" of a product Trade dress is generally the way a product is packaged or how a store or restaurant is configured. The purpose is to create a certain "look and feel" associated with the product or service.
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The orange exterior of Home Depot stores is an example of:
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a trade dress.
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A service mark is:
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A service mark associates a mark (trademark) with a service.
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The motto "Union Made in the USA" is a:
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a certification mark. The motto tells you something about the quality of the product or its origins.
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A trademark or service mark that is used in commerce by members of a cooperative, an association, or other collective group or organization is a(n):
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collective mark A collective mark shows that a group of businesses behave in a similar manner. Think FTD Florists
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A trade name is protected by:
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Trade names do not enjoy statutory protection per se unless it is the same as a trade marked product-Coca Cola. Then it is protected under the Lanham Act. However, state laws regarding corporations, partnerships, etc. give some protection to trade names. Trade names can be protected under common law as well
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The law of copyright gives a copyright owner all of the following rights except the right:
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to reproduce the work to perform the work in public to display the work to publish the work copyright provides protection for all these activities.
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What allows exclusive control over original written works, musical compositions, art and photography; including control over reproduction, display and derived works:
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Copyrights When you think of copyrights think of artistic endeavors. Copyrights allows the authors control over their own artistic works.
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The term of copyright protection is:
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the life of the author plus 70 years For an individual, it is the life of the author plus 70 years.
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To be copyrightable, a work must:
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be original A copyright work must be original, but it must be capable of being "affixed" in some physical form.
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Something that is in the public domain:
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may be used, performed, or reproduced by anyone Public domain means you and me-anyone.
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A patent is good for:
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20 years from time of application
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An invention must be which of the following to get a patent?
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useful novel not obvious To be patentable, an invention must be useful, novel and not obvious.
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To recover for a defective product, an injured person must be in a contractual relationship (privity) with the seller.
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False. Privity of Contract was required for many years prior to the early 1920's in order to bring a lawsuit based on Strict Liability. That was changed by the decision in MacPherson v. Buick, which permitted the Plaintiff to recover against the Defendant, even though it was not the Defendant who sold the defective part to the Plaintiff.
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Most states in the United States have adopted strict product liability whereby an injured person may recover damages by showing that a defendant was negligent.
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False. One of the outstanding features of the theory of strict liability is that the Plaintiff does not have to prove the "fault" of he Defendant with respect to the defective product. The Plaintiff must still prove that the Defendant's sale of the product resulted in harm to the Plaintiff and that the Plaintiff was damaged.
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In regard to a product liability action, a disclaimer of liability is generally effective.
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False. Disclaimers of liability are effective in eliminating only certain types of liability (warranties). Disclaimers normally are part of a contract between the parties. This is not often the case when dealing with consumer goods.
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Strict liability in tort applies only to products, not to services.
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False. This is a bit of a trick question. There are certain abnormally dangerous activities for which strict liability applies, such as using explosives, housing wild animals. But there is also the concept of product liability, which can be based on a number of theories (1) Negligence; (2) Fraud (3) Strict Liability. So, the concept of strict liability in tort can apply to activities. When dealing with strict liability in product liability, only products are subject to this theory, even though there may be attendant activity or services used with the products.
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An unusual use that is reasonably foreseeable may be considered a normal use of a product
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True. If a misuse of a product were such that it is "foreseeable", such misuse would not be a valid defense to a strict liability lawsuit. Because the misuse is foreseeable, the manufacturer should have anticipated the misuse and attempted to alleviate such use, perhaps by an alternative design.
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A manufacturing defect is the only basis for product liability.
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False. Both design defects and failure to adequately warn will support strict liability for products that cause harm.
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If the use of a product carries an obvious risk, the manufacturer will not be held liable for injuries that result from ignoring the risk.
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True: The manufacturer is held liable under a strict liability rationale because the product is unreasonable unsafe. However, if the risk of danger is obvious to a reasonable consumer, then the risk is not abnormally unsafe.
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Product liability is the legal liability manufacturers and sellers have for defective products that cause injury to purchasers, users, bystanders, or their property.
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True. Product liability is a legal theory of recovery in tort based upon public policy that the manufacturer and those in the chain of distribution are better prepared to bear the cost of a defective product then the unfortunate consumer who is injured by it.
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The assumption of risk doctrine makes the manufacturer liable for a resulting injury.
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False: The assumption of risk defense relieves the manufacturer of the product from liability where the consumer knows the risk or danger involved in the use of the product and proceeds voluntarily to use the product.
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If a producer did not foresee a possible danger with a product that does, in fact, cause injury, the producer cannot be held negligent in tort.
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False. In order for a producer or manufacturer of a good to be held liable for its injury to others, the risk of danger must be reasonably foreseeable. The fact that the producer does not foresee a possible risk is not the point. The point is whether a reasonable person is likely to foresee such a risk.
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Frustration over the difficulties of proving negligence led to the move in tort law from negligence standard to a strict liability standard.
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True. In order to prove negligence, the Plaintiff must prove both duty and breach of duty. A duty is created if there is a foreseeable risk. In strict liability, the focus is shifted from the defendant's conduct to the product itself. If the product is unreasonably dangerous (a danger that a reasonable consumer would not foresee), then the Plaintiff can proceed. It is difficult to prove who in the chain of ownership was responsible for the defect. The presence of strict liability relieves the Plaintiff of having to prove which Defendant owed what duty. The Plaintiff must prove rather that the product was defective
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To win a case based on strict liability against a producer, the plaintiff must show that the product was defective, that a defect in it caused it to be unreasonably dangerous, and the defect was the proximate cause of the injury.
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True. The Plaintiff does NOT have to prove either a duty or a breach, which would be the case if the action were based in negligence.
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The consumer must purchase the (defective) product directly from the manufacturer in order to prevail in strict liability.
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False. There is no requirement for privity of contract in order for a Plaintiff to sue the manufacturer directly for strict liability.
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The doctrine of strict liability has been extended to include cases where manufacturers produce a poorly designed product.
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True. Strict liability can be based on several underlying theories (1) Manufacturing defect; (2) Design Defect; (3) Inadequate warnings.
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A gun manufacturer that fails to warn its users that hearing loss may occur due to long-term exposure to gunfire may be strictly liable in tort for hearing loss
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True. It is foreseeable that long term usage of a weapon that emits a very loud sound is unreasonably dangerous and would result in damage to hearing, where at the very least, the purchaser should be warned of this type of danger.
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Common defenses in strict liability cases are product misuse or assumption of risk.
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True. Strict Liability cases do not have a good deal of defenses available, those defenses that might be used in negligence cases are normally not put forward in strict liability cases. As a result, product misuse and assumption of risk are defenses used extensively in product liability scenarios. Again, the defense of assumption of risk is difficult to prove.
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Strict liability for ultra hazardous activities is an old concept going back more than a century.
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True. Common Law of England used the theory of strict liability somewhat extensively. The colonies and later the individual states were less inclined to use strict liability as a cause of action.
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A person puts much more air in a tire than recommended. The tire explodes, injuring the person. The person is unlikely to win a case against the tire maker because of product misuse.
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True. However, one would have to examine whether this type of misuse was foreseeable. It would also depend on the amount of overfill that the car owner utilized. The facts state that the user put "much more air" in the tire than recommended. This would be supportive of the defense of product misuse.
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The law of product liability is primarily concerned with:
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harms suffered by consumers of defective products Product liability is a relatively new concept in the US judicial system. Strict liability provides a consumer with relief from injury from a defective product.
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The rule that "The manufacturer of a product is liable in the production and sale of a product for negligence, if the product may reasonably be expected to inflict harm on the user if the product is defective" originated from:
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MacPherson v. Buick Motor Product liability can be based on a number of theories. It can be based on 1) Negligence, 2) Fraudulent Misrepresentation; and, 3) Strict Liability. MacPherson v. Buick Motor
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During the 20th century, when consumers were injured as a result of using defective products, courts adopted a new legal standard that could apply to such cases, so that negligence was no longer the only standard:
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When courts began to apply the theory of "strict liability" as a theory upon which injured consumers could sue a manufacturer of a defective product, negligence became less utilized. Consumers now had several theories upon which recovery could be based, including negligence and strict liability.
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The rule requiring producers to pay compensation to consumers injured by defective products, even though reasonable care has been exercised, is called:
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strict liability Strict liability does not consider whether the manufacturer utilized "reasonable care" in manufacturing the product, only whether the product itself is unreasonably dangerous.
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Under the strict liability doctrine, the focus is on the ____, rather than the reasonableness of the conduct of the manufacturer.
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problem the plaintiff had understanding the manufacturer's instructions problems with advertising problem created by careless production workers problems with the manufacturing process none of the other choices are correct In strict liability, the focus is on the product, rather than the conduct of the manufacturer.
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Liability based on ____ may be imposed on a manufacturer if a causal connection can be established between the failure of the manufacturer to exercise reasonable care and an injury suffered by a consumer.
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Negligence Negligence is a theory that is based on the concept of the defendant's behavior failing to meet the standard of reasonable care.
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Strict liability under contract law for injuries caused by defective products is based on:
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the existence of a warranty Strict liability can be based in tort (negligence, fraud, strict liability) and contract (breach of warranty).
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Privity is
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a legal relationship Privity describes the relationship between parties. "Privity of Contract" refers to the fact that two parties are in a contractual relationship, most commonly Seller and Buyer.
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Unless a consumer buys a product directly from the producer:
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there is no privity between consumer and producer Where a consumer has not purchased a product directly from a producer or manufacturer, there is no privity of contract. The fact that no privity existed between the producer of a defective product (manufacturer) and the person harmed by the defective product (consumer) used to preclude the injured consumer from suing the manufacturer for relief. However, the law in this area changed dramatically when the theory of "strict liability" was permitted, which allows recovery by the injured consumer without a showing of privity of contract with the manufacturer who made the defective product.
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The term privity of contract refers to:
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the relationship that exists between the parties to a contract "Privity of contract" refers to a factual situation where two parties have contracted with each other.
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The ____ is primarily concerned with harms suffered by buyers and other persons who use defective products.
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law of stock protection law of malpractice liability law of seller liability law of commercial liability none of the other choices are completely correct While selection c would describe a component of strict liability, it does not fully describe the strict liability theory.
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In product liability law, privity refers to:
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the relationship that exists between contracting parties In the field of product liability, privity, or more precisely, "privity of contract" describes the relationship between two contracting parties.
