Need Reflection And Discussion Post Of 500 Words In APA Format With 4 Citations And 4 References
Reflect on the assigned readings for the week. Identify what you thought was the most important concept(s), method(s), the term(s), and/or any other thing that you felt was worthy of your understanding.
Required Text(s): 1. Jennings, M. (2018). Business: Its legal, ethical, and global environment (11th Edition). Cengage Learning, Boston, MA.
Chapter 12: Contracts and Sales
Chapter 13: Product Advertising and Liability
Chapter 14: Products: Business Intellectual Property
Chapter 15: Business Competition: Antitrust
Also, provide a graduate-level response to each of the following questions:
Sly Salesperson sells cars. While selling a car, Sly Salesperson tells the potential buyer that this is the best car around. Its a great car and sips gas. The car has an average fuel rating. Has Sly Salesperson committed a misrepresentation? Fraud? Why or why not? Does the analysis change if Sly Salesperson says the car get 40 miles per gallon, but in fact, the car only gets 30 miles per gallon?
What factors have courts considered when evaluating factual statements versus opinion-based statements? Could there still be a liability for purely opinion-based statements?
Explain what the Robinson-Patman Act prohibits, what is required to show a violation, and what the defenses are.
Explain the differences in patents, copyrights, and trademarks, including the length of each and examples of each.
Chapter 15
Business and Intellectual Property Law
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Examples
Patents
Copyrights
Trademarks
Trade Names
Trade Dress
Intangible Personal Property
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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20 Years From Filing/15 Years for Design Patent
Exclusive Rights to Use and Profits
Must Be Non-obvious, Novel, and Useful
Using the Idea Without Consent Constitutes Infringement
Patents
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Remedies for Patent Infringement
Case 15.1 eBay, Inc. v. MercExchange, LLC (2006)
The issue of a permanent injunction
How do we balance interest in protecting property rights without depriving the world of new developments and technologies?
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2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Protect Authors of Books, Magazine Articles, Plays, Movies, Songs, Dances, Photographs
Protects Against Vicarious Infringement
Third parties who facilitate infringement
Copyrights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Case 15.2 Sony BMG Music Entertainment v. Tenebaum (2011)
What happens if you are warned against facilitating infringement or are infringing and dont stop?
What is the schools liability for use of its server?
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2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
Copyrights
Runs For Lifetime of Author Plus Seventy Years
120 Years From Creation or 95 Years From Publication, Whichever is Shorter, if Company Holds Rights
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2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Statutes
Sonny Bono Copyright Extension Act
Digital Millennium Copyright Act
Computer Software Copyright Act of 1980
Copyrights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Works Automatically Copyrighted But No Suits Can be Filed Until the Copyright Office is Given a Copy
Damages Include Profits, Costs, Attorneys Fees
Fair Use is Permitted Short Quotes; Research Copies, Criticism, Commentary and Parody
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Campbell v. Acuff-Rose Music, Inc. (1994)
Parody as art and expression
Excessive use is not necessarily a bar to fair use standard
Case 15.3 Louis Vuitton Malletier v. My Other Bag, Inc. (2016)
Product parodies increase brand demand
Is Parody Fair Use?
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Words, Pictures, Designs, or Symbols Used to Identify a Product
Lanham Act of 1946 and Subsequent Amendments Provide Protection
Must Be Unique and Non-generic
Holder Must Maintain Unique Nature
Recent Changes Allow Registration Prior to Use of the Trademark
Trademarks
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Trademark Dilution Act (an Amendment to the Lanham Act)
Passed in 1996
Protects against dilution of trademarks and includes both profit and non-profit uses
Trademark Dilution
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Infringement
Case 15.4 Beastie Boys v. Monster Energy Company (2015)
Was there authorization for use?
Was it fair use?
What lessons should businesses learn from this experience?
Issues with trademark offensiveness
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Colors, Shapes, and Designs Associated With a Product
Allowing their use is likely to create confusion
Consumer surveys are used to establish whether consumers will be misled
Penalties for Infringement
Civil suits
Criminal penalties
Trade Dress
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Infringement and the Web
Cyber Infringement
Federal Trademark Dilution Act
Applies to Internet
Self-enforcing
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Intellectual Property Rights
TYPE OF
INTELLECTUAL
PROPERTY TRADENARKS COPYRIGHTS PATENTS TRADE
SECRETS
Protection
Applicable standard
Where to apply
Duration Words, names, symbols, or devices used to identify a product or service
Identifies and distinguishes a product or service
Patent and Trademark Office
Indefinite so long as it continues to be used Original creative works of authorship, such as writings, movies, records, and computer software
Original creative works in writing or another format
Register of Copyrights
Life of author plus 70 years; corporate is 120 years from creation or 95 years from publication of the work Utility, design, and plant patents
New and nonobvious advances in the art
Patent and Trademark Office
Utility and plant patents, 20 years from date of application; design patents, 15 years Advantageous formulas, devices, or compilation of information
Not readily ascertainable, not disclosed to the public
No public registration necessary
Indefinite so long as secret is not disclosed to public
Click to edit Master text styles
Second level
Third level
Fourth level
Fifth level
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
Trade Secrets
Customer Lists, Customer Information, Data Processed a Certain Way
Uniform Trade Secrets Act
Protects employers from having former employees take trade secrets to new employer
Industrial Espionage Act
Makes it a federal crime to transfer trade secrets to another
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2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Patent Protection
Some countries require opposition proceedings for defense of the patent
Some countries impose working requirements
International I.P. Issues
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
Name, symbol, mark, letter, word or figure
Must be registered in United States and other countries for full protection
Protects the goodwill of the firm
Common law countries establish trademark through establishing use and recognition
Now in United States you can register a trademark before you begin using it
International Trademark
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
In 1996, EU opened a centralized office for Trademark registration for member states
Provides a one-step registration for all EU countries
1891 Madrid Agreement provides for international registry of trademarks
Effective in all member countries for five years
1929 Pan American Convention provides protection for registered trademarks in all member countries
International Trademark
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
Knock-off goods: goods carrying trademarks that are not produced by the trademark holder
Gray market goods: actual trademark goods that are sold without authorization of trademark holder
International Trademark
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Berne convention membership: registration in one is registration in all
Will be part of WIPO
Simultaneous publication in member country is protected
International standards vary
Chinas software piracy
China is on trade watch list because so much software is copied
International Trademark
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Product Disparagement: Defamation for Products/Businesses
Elements
Statement about a business reputation, honesty, or integrity that is untrue
Publication
Statement is directed at business with intent to injure
Damages
Enforcing Business Rights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 15.5 Bose Corporation v. Consumers Union of the United States, Inc. (1984)
Why is Malice an important part of the case?
What classes of speech are excepted from First Amendment protection?
Enforcing Business Rights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Palming Off
Company sells product by leading buyers to believe the product is something else
Examples: Fake Rolex watches; Cabbage Patch dolls
Plaintiff must establish that confusion is likely
Enforcing Business Rights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Misappropriation
Protects business trade secrets such as the customer list
Some theft, espionage or bribery must be used to obtain secret information
Enforcing Business Rights
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
25 Chapter 13
Product Advertising
and Liability
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Development of Product Liability
Initially No Liability for the Seller
Courts followed a theory of Caveat Emptor (Let the buyer beware)
Caveat Emptor Removed in Section 402A of the Restatement of Torts
Law has swung from no liability to almost per se liability
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Express Warranties
Creation: Affirmation of fact or promise of performance (samples, model, descriptions)
Restriction: Must be part of the basis of the bargain
Disclaimer: Cannot make a disclaimer inconsistent with an express warranty
Contract Basis for Product Liability
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Fact vs. Opinion
FACT OPINION
This car gets 20 miles per gallon. X
This car gets great gas mileage. X
These goods are 100% wool. X
This is the finest wool around. X
This truck has never been in an accident. X
This truck is solid. X
This mace stops assailants in their tracks. X
This mace is very effective. X
Click to edit Master text styles
Second level
Third level
Fourth level
Fifth level
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Fact vs. Opinion
FACT OPINION
This makeup is hypoallergenic. X
This makeup is good for your skin. X
This ink will not stain clothes. X
This ink is safe to use. X
This computer is IBM-compatible. X
This computer is as good as any IBM. X
This watch is waterproof. X
This watch is durable. X
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 13.1 Castro v. QVC Network, Inc. (1998)
Was the pan represented as suitable for roasting a 25 lb. turkey?
What is the relationship between tort liability and warranty liability?
Did the pan pass the risk/utility test?
Contract Basis for Product Liability
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Regulations
Federal Trade Commission Act Authorizes FTC as Enforcement Agency
Passed in 1914
Federal Trade Commission given broad authority
Requires regulation of unfair and deceptive trade practices
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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FTC Broadened by Wheeler-Lea Act of 1938
Is public deceived? standard
Not limited to adverse impact on competition
FTC Improvements Act of 1980
Put some restrictions on FTC regulation
Federal Regulations
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Content Control and Accuracy
No aspirin, aspirin free, all dairy products, and so on (like express warranties)
Performance Claims: Advertiser Must be Able to Prove Claim
Corrective advertising: FTC has required corrective advertising when unsubstantiated claims have been made
Federal Regulations
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 13.2 Warner-Lambert Co. v. FTC (1977)
What proposals for corrective advertising are made in the order?
What modification in the order does the court make?
Performance Claims
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Celebrity Endorsements
Celebrity must have used the product
If the celebrity has not used the product, the source of claims must be given
Bait and Switch
Prohibits advertising cheaper product and then getting customers to buy the more expensive product
Federal Regulations
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Regulations
Celebrity Tweet Guidelines
To thine own self be true whatever the celebrity says must be a honest opinion
Time will tell endorsement can be used only as long as the celebrity uses the product and believes in the product
Celebrity cannot ignore obvious facts that indicate claims about the product are not true
Companies must disclose that the celebrity is being paid for the Tweets Tweets must contain information about celebrity compensation
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2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Product Comparisons
FTC took a laissez-faire approach during the 1980s
It encouraged comparisons
Congress amended trademark law in 1989 to allow competitors to bring suit for deceptive statements about products in competitors ads
Federal Regulations
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 13.3 McNeil-PPC, Inc. v. Pfizer, Inc. (2005)
What concerns were there about the ad representations about the studies in flossing vs. use of Listerine?
How did experts feel about flossing vs. Listerine?
Are floss companies and mouthwash companies really competitors?
Product Comparisons
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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FTC Remedies: Consent Decree is a Negotiated Settlement
Ad Regulation by FDA
FDA is regulating more as more prescription medications are directly advertised
State Regulations: Professional Ads
Federal Regulations
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Implied Warranty of Merchantability ( 2-314)
Given in every sale of goods by a merchant
Goods are fit for ordinary purposes
Average quality with adequate packaging
Implied Warranties
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Case 13.4 Rothbaum v. Samsung Telecommunications America LLC (2014)
What was the technical problem with the phone?
What is the percentage of phones with problems?
Was Samsung aware of a problem?
Merchantability
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Merchantability
Food and Drink Merchantability Cases
Foreign-natural v. reasonable expectation
Case 13.5 Estate of Pinkham v. Cargill, Inc. (2012)
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Implied Warranty of Fitness for a Particular Purpose ( 2-315)
Requirements
Seller has particular skill or judgment
Buyer is relying on that skill or judgment
Seller knows or has reason to know of reliance
Seller makes recommendation to buyer
Implied Warranties
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Contract Product Liability
Type
Express
Implied Warranty of Merchantability Creation
Affirmation of fact or promise of performance (samples, model, descriptions)
Given in every sale of goods by a merchant (fit for ordinary purposes) Restriction
Must be part of the basis of the bargain
Only given by merchants Disclaimer
Cannot make a disclaimer inconsistent with an express warranty
Must use disclaimer of quality or use merchantability or general disclaimer as is or with all faults; (2) If written (record) must be conspicuous
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Contract Product Liability
Type
Implied Warranty of Fitness for a Particular Purpose
Title
Creation
Seller knows of buyers reliance for a particular use (buyer is ignorant)
Given in every sale
Restriction
Seller must have knowledge; buyer must rely
Does not apply in circumstances where apparent warranty is not given Disclaimer
Must be in writing (record); (2) Must be conspicuous; (3) Must be clear there are no warranties (using specific language) or (4) Also disclaimed with as is or with all faults
Must state There is no warranty of title
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Eliminating Warranties by Disclaimers
Can disclaims both implied warranties by using with all faults, as they stand, as is
Can also disclaim by using the names of both warranties in clear language
Implied Warranties
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Privity Standards ( 2-318)
Privity at buyer level three code alternatives
Alternative A buyer, members of household, and guests
Alternative B any natural person expected to use goods
Alternative C extends to any person expected to use the goods
Implied Warranties
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Strict Tort Liability ( 402A)
Defendant had duty to manufacture a reasonably safe product/was in the business of selling or manufacturing product
That duty was breached
Breach of duty caused plaintiffs injury (product reached plaintiff in same condition)
Foreseeable that defect would cause injury
Plaintiff has property or physical damages
Strict Product Liability
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Unreasonably Dangerous Defective Condition
Design defect
Improper warnings or insufficient instructions
Negligent packaging, manufacturing, or handling
Strict Product Liability
2017 Cengage Learning. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 13.6 Smith v. Coleman Co. (2010)
Was the product defective because the
