FROM PAGE 23 MIDTERM 2 NOTES
Chapter 1 and 3
-They often resorted to deciding cases on the basis of prior written decisions precedents. In
relying on those prior decisions, the judge would reason that since a current case was pretty
much like a prior case, it ought to be decided the same way.
-A doctrine of stare decisis became accepted in English courts.
-In common law rules, and as a common law system all law can be shaped by precedents.
Civil Cases
Criminal Cases
Parties
Plaintiff brings case; defendant must
answer or lose by default
Prosecutor brings case; defendant
may remain silent
Proof
Preponderance of evidence
Beyond a reasonable doubt
Reason
To settle disputes peacefully, usually
between private parties
To maintain order in society
To punish the most blameworthy
To deter serious wrongdoing
Remedies Money damages (legal remedy)
Injunctions (equitable remedy)
Specific performance (equity)
Substantive law:
-What to do and what not to do
-Examples:
Fines, jail, and forfeitures
Drive not more than fifty-five miles per hour where that speed limit is posted.
Do not conspire to fix prices with competitors in the US market.
Procedural law:
-Examples:
What court or tribunal hears the case? What is the burden of proof? What is the time limit for
filing? What kind of evidence can be heard by the court? Which side presents evidence first?
Sources of Law:
Constitution – Most nations have a constitution. Highest Law of the Land. It provides the rules
for making laws, sets out the division of power in a federal system, and, in some cases, imposes
restraints on the law-making authority of the sovereign.
(Rules for rule making)
(written or spoken)
Statutes – Written laws made under the authority of the sovereign power.
(Written laws that we follow)
Administrative Law – Rules or laws made by ministries or administrative agencies on the basis
of authority delegated to them by the sovereign.
(Each emirate law)
Common Law – Laws and interpretations of laws created by precedent and stare decisis.
Legal systems of the world:
■Common Law Systems – Court decisions do not only resolve the dispute at issue, but also form
part of the law going forward. Thus, all law, including Constitutions, Statutes, Administrative
Law and Common Law rules are subject to change and changing interpretations due to new
judicial decisions.
■Civil Law Systems – Court decision only resolve the matter at hand, and do not become
precedents for future decisions. Thus, each dispute a court hears is decided on the basis of the
facts before the court, and statutes or administrative rules.
Over time, the two systems have come to resemble each other, with Common Law systems
codifying many aspects of formerly common law rules, and Civil Law systems informally
recognizing some precedents.
Common Law System: (based on precedents and statutes)
Civil Law Cases (between individual and institution) & Criminal Law Cases (by govr through
prosecuter against defendant)
Civil Law System: (based on statutes)
Private Law Cases & Criminal Law Cases
Alternative means of Resolving disputes: ( any resolution outside court)
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It is good because resolutions in court are time consuming, expensive, and public.
Negotiation – Most legal disputes are resolved without recourse to courts – and many disputes
that are brought to court are settled prior to the court delivering a verdict.
Mediation – Essentially like negotiation, but with the assistance of a neutral person who does not
represent either party but is interested only in a resolution. Usually, for family issues.
Arbitration – Like an informal court. Parties present evidence and make arguments – Arbitrator
follows rules and gives a legally binding decision that resolves the dispute – enforceable through
the courts if the losing party does not respect the verdict. And can impose result without the
parties agreeing
Chap 7- Torts
There are 3 types of torts:
1. Intentional torts - they arise from wrongful acts, you intentionally hit someone, you
intended such an act.
2. Negligent torts - You were careless enough to know if what you did was harmful for
others or not.
3. Strict liability torts - you are liable for it even if you didn't do anything wrong.
Intentional Torts: Assault, Battery, false imprisonment, Intentional Infliction of Emotional
Distress, Trespass, Intentional Interference with Contractual Relations, defamation,
invasion of privacy.
Assault is
(1) the threat of immediate harm or offense of contact
or (2) any act that would arouse reasonable apprehension of imminent harm.
Issue: Whether the plaintiff can sue the defendant for assault as a form of an intentional tort?
Rule: Assault is a criminal offense that typically involves the intentional act of causing
apprehension of harmful or offensive contact in another person without their consent.
The key elements of Assault would include:
Intent: The defendant must have the intent to commit an act that causes apprehension in the
victim.
Apprehension: The victim must reasonably apprehend an imminent threat of harmful or
offensive contact.
Imminent Threat: The threat of contact must be immediate or impending.
Application: In this case, let's consider an example:
Imagine that John is angry with Jane because she owes him money. In a fit of anger, John raises
his fist and threatens to punch Jane in the face. Jane genuinely fears that John will carry out the
threat, and she takes a step back to avoid the punch. However, John does not actually strike Jane.
In this example, the elements of assault can be analyzed as follows:
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Intent: John's actions demonstrate an intent to cause apprehension in Jane. He threatens to
punch her, which is an intentional act.
Apprehension: Jane reasonably apprehends an imminent threat of harmful contact. Her
fear is genuine, as evidenced by her taking a step back to avoid the punch.
Imminent Threat: The threat of contact is immediate because John's raised fist and threat
create a situation where it seems likely that he will follow through with the punch.
Based on the analysis, it can be concluded that John's actions meet all the elements required for
an assault charge. He intended to cause apprehension in Jane, she reasonably feared imminent
harm, and the threat of harmful contact was immediate.
Conclusion: In this case, John can be charged with assault because he intentionally created a
situation where Jane reasonably feared imminent harmful contact. It's important to note that
actual physical contact is not necessary for an assault charge; the key is the victim's reasonable
apprehension of an imminent threat.
Battery is unauthorized and harmful or offensive physical contact with another person that
causes injury.
Imagine that Sarah and Alex are at a crowded party. Sarah is dancing, and Alex, who is
intoxicated, approaches her. Without any warning or consent, Alex forcefully grabs Sarah's arm
and twists it, causing her pain.
In this example, the elements of battery can be analyzed as follows:
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Intent: Alex's actions demonstrate an intent to physically contact Sarah. He forcefully
grabbed her arm and twisted it, which is an intentional act.
Unlawful Contact: Sarah did not consent to this physical contact. In fact, she did not want
Alex to touch her in this manner.
Harmful or Offensive Contact: The physical contact was harmful as it caused Sarah pain.
It can be reasonably considered offensive as well, given that it was unwanted and
forceful.
Based on the analysis, it can be concluded that Alex's actions meet all the elements required for a
battery charge. He had the intent to make physical contact with Sarah, the contact was unlawful
since it was without her consent, and the contact was both harmful and offensive.
Conclusion: In this case, Alex can be charged with battery because he intentionally and
unlawfully made physical contact with Sarah, causing her harm and offense. Battery does not
require the infliction of severe injury; any harmful or offensive contact without consent can
constitute battery.
Often an assault results in battery, but not always. It is also possible to have a battery
without an assault.
■Defenses:
–Consent
–Self-defense
–Defense of others/property
False Imprisonment: False imprisonment is a tort that occurs when an individual
intentionally and unlawfully restricts another person's freedom of movement without their
consent. (Sample rule: False imprisonment is the confinement or restriction of movement
of a person without justification. Confinement by a store on suspicion of shoplifting is
potentially justified, but it must be based on reasonable grounds, and be for a reasonable
duration)
The key elements of false imprisonment include:
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Intent: The defendant must have the intent to confine or restrain the victim.
Unlawful Restraint: The confinement must be against the will of the victim and without
lawful justification.
Awareness of Confinement: The victim must be aware of, or harmed by, the confinement.
Lack of Consent: The victim did not provide voluntary consent to be confined.
Imagine that Mary is shopping in a department store. She is accused by a store security guard,
Bob, of shoplifting. Bob grabs Mary and forcefully takes her into a small, windowless room at
the back of the store, locking the door behind them. Mary repeatedly protests her innocence and
asks to leave, but Bob refuses to let her go. After 30 minutes, Bob finally allows Mary to leave
the room.
In this example, the elements of false imprisonment can be analyzed as follows:
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Intent: Bob's actions demonstrate an intent to confine Mary. He intentionally locked her
in a room against her will.
Unlawful Restraint: The confinement was against Mary's will, and there was no lawful
justification for it. Mary was falsely accused of shoplifting, and Bob had no legal
authority to detain her.
Awareness of Confinement: Mary was fully aware of her confinement. She repeatedly
protested, indicating her awareness and desire to leave.
Lack of Consent: Mary did not provide voluntary consent to be confined. Her protests
and requests to leave make it clear that she did not agree to stay in the room.
Based on the analysis, it can be concluded that Bob's actions meet all the elements required for a
false imprisonment claim. He intentionally and unlawfully confined Mary against her will,
making her aware of the confinement and without her consent.
Conclusion: In this case, Bob can be held liable for false imprisonment because he intentionally
and unlawfully restrained Mary's freedom of movement, which meets all the elements necessary
to establish a claim for false imprisonment.
Intentional Infliction of Emotional Distress: Intentional infliction of emotional distress (IIED)
is a tort that occurs when an individual intentionally engages in extreme and outrageous conduct
that causes severe emotional distress to another person. The key elements of IIED typically
include:
Issue: The issue in this case is whether the defendant can be held liable for intentional infliction
of emotional distress based on their actions.
Rule: Intentional infliction of emotional distress (IIED) is a tort that occurs when an individual
intentionally engages in extreme and outrageous conduct that causes severe emotional distress to
another person. The key elements of IIED typically include:
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Intent or Recklessness: The defendant must have acted with either the intent to cause
severe emotional distress or reckless disregard for the high probability that their actions
would result in such distress.
Extreme and Outrageous Conduct: The defendant's conduct must go beyond what is
considered reasonable in society and be so extreme and outrageous that it exceeds all
bounds of decency.
Causation: The defendant's conduct must be the direct cause of the plaintiff's severe
emotional distress.
Severe Emotional Distress: The plaintiff must suffer severe emotional distress as a result
of the defendant's conduct.
Application: In this case, let's consider an example:
Imagine that Tom and Sarah are neighbors, and they have had a long-standing feud. One day, in
an attempt to intimidate Sarah, Tom sends her a series of threatening and highly offensive
anonymous letters over several weeks. These letters contain graphic and violent threats against
Sarah's family and herself, and they describe in detail how they will harm her. Sarah is terrified
and begins to suffer from severe anxiety, panic attacks, and insomnia as a result of the letters.
In this example, the elements of intentional infliction of emotional distress can be analyzed as
follows:
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Intent or Recklessness: Tom's conduct in sending threatening and offensive letters
indicates either the intent to cause severe emotional distress to Sarah or reckless disregard
for the high probability that his actions would result in such distress.
Extreme and Outrageous Conduct: Tom's conduct in sending threatening and violent
letters containing graphic threats can be considered extreme and outrageous, far
exceeding the bounds of decency.
Causation: Tom's actions directly caused Sarah to suffer severe emotional distress. Her
anxiety, panic attacks, and insomnia are a direct result of the letters.
Severe Emotional Distress: Sarah is suffering from severe emotional distress, as
evidenced by her symptoms of anxiety, panic attacks, and insomnia.
Based on the analysis, it can be concluded that Tom's actions meet all the elements required for
an intentional infliction of emotional distress claim. His conduct was extreme and outrageous,
intended to cause emotional distress, directly caused severe emotional distress to Sarah, and
resulted in her suffering significant emotional harm.
Conclusion: In this case, Tom can be held liable for intentional infliction of emotional distress
because his extreme and outrageous conduct, including sending threatening and offensive letters,
intentionally caused severe emotional distress to Sarah.
Intentional Interference with Contractual Relations (opera 1 and 2 example), Tortious
interference with a contract can be established by proving four elements:
1. There was a contract between the plaintiff and a third party.
2. The defendant knew of the contract.
3. The defendant improperly induced the third party to breach the contract or made
performance of the contract impossible.
4. There was injury to the plaintiff
Defamation is an injury to a person’s good name or reputation. In general, if the harm is done
through the spoken word—one person to another, by telephone, by radio, or on television—it is
called slander. If the defamatory statement is published in written form, it is called libel.
Defamation is an intentional tort that causes injury to a person's good name or reputation. It tends
to harm the reputation of a person in order to deter third parties from associating or dealing with
them.
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Slander - Different elements must be met to prove defamation and a factor of damages to
consider: (a) Was the statement communicated by the defendant about the plaintiff false?
(b) Was the statement published or communicated to a third party? (c) Was the plaintiff
referenced or identified by name to a third party? (d) Did the plaintiff suffer economic
harm as a result of the defendant's slander?
Issue:
Is Lisa, the defendant, liable to George, the plaintiff, under the tort of defamation for slander?
Rule:
Defamation is an intentional tort that causes injury to a person's good name or reputation. It tends
to harm the reputation of a person in order to deter third parties from associating or dealing with
them. Different elements must be met to prove defamation and a factor of damages to consider:
(a) Was the statement communicated by the defendant about the plaintiff false? (b) Was the
statement published or communicated to a third party? (c) Was the plaintiff referenced or identified
by name to a third party? (d) Did the plaintiff suffer economic harm as a result of the defendant's
slander?
Application:
(a) Lisa intentionally communicated false accusations that George is unskilled and incapable of
delivering quality work. (b) By Lisa telling her neighbors the false claims about George, we
assume that it is done through spoken form. Therefore, Lisa is slandering George's name to one or
more third parties. (c) Since Lisa communicated to her neighbors that George or her gardener is
producing low-quality work, she is explicitly referencing George as the subject of these falsely
accused claims. (d) Given that George is providing a service, the slander of his quality of work
harms his business. George incurred economic harm, with the loss of long-standing clients due to
the untrue assertions made by Lisa; George sustained a loss of $10,000 in revenue. Furthermore,
George's impaired reputation can tarnish his ability to acquire new clients, which could result in
further economic losses.
Conclusion:
Given that the elements under the tort of defamation are met, and taking into account the factor
involved, Lisa is liable to George for defamation.
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Libel - Defamation in libel is a civil tort that occurs when a false statement is made in
written or printed form (including online publications) that harms a person's reputation.
The key elements of defamation in libel typically include:
Publication: The false statement must be published or communicated to a third party.
Falsity: The statement must be false. Truth is an absolute defense to defamation claims.
Harm to Reputation: The false statement must harm the plaintiff's reputation. This harm
can be in the form of damage to their character, business, or standing in the community.
Fault: Depending on the jurisdiction, the plaintiff may need to prove that the defendant
was at fault in publishing the false statement. Fault can range from negligence to actual
malice (knowingly false or with reckless disregard for the truth).
Defenses:
Truth is an absolute defense to a charge of libel or slander
Invasion of privacy: Invasion of privacy points out the right to be free of intrusion on your
personal space or seclusion. The defendant’s conduct must be intentional or reckless. The
Defendant must have invaded, without lawful justification, the Plaintiff’s private affairs or
concerns.
Issue:
Can Lisa, the plaintiff, sue George, the defendant, under the tort of invasion of privacy for planting
a remote microphone in her purse to capture and record her conversations?
Rule:
Invasion of privacy points out the right to be free of intrusion on your personal space or seclusion.
The defendant’s conduct must be intentional or reckless. The Defendant must have invaded,
without lawful justification, the Plaintiff’s private affairs or concerns.
Application:
George planted a tiny remote microphone in Lisa’s purse, to intentionally record all her
conversations and then transmitted them to his phone. His motive is to get proof that the statements
she is spreading around about him are false, and clear his name. Nevertheless, by bugging her
purse he is invading her personal space. Ultimately, by George planting a recording device in
Lisa’s belongings, he is accessing information that he is not privy to. Hence, violating Lisa’s right
to privacy.
Conclusion:
Since a type of interest under invasion of privacy was met, Lisa can sue George under the tort of
invasion of privacy for planting a remote microphone and recording her conversations.
Negligence: If the plaintiff is injured due to the lack of care or thought of the defendant; the
plaintiff has a case of negligence against the careless/thoughtless defendant; as long as the
following questions are justified: (a) Did the defendant owe a duty of care to the plaintiff? Was
the plaintiff’s situation such that a reasonable person in the defendant’s position would have
taken care to prevent harm to the plaintiff? (b) Did the defendant breach his/her duty of care to
the plaintiff? Did the defendant take measures to prevent harm to the plaintiff? (c) Did the
defendant's breach cause the plaintiff's injury? (c.i) Was the defendant's breach the cause, in fact,
of the plaintiff's injury? If the defendant had not committed the breach, would the injury have
occurred? (c.ii) Was the defendant's breach the proximate cause of the plaintiff's injury? Was the
injury the sort of thing a reasonable person would anticipate as a result of their actions? (d) Did
the plaintiff suffer a legally recognizable injury? (e) Based on those questions, defenses for
negligence can be established. This includes comparative negligence, a defense that bars a
plaintiff from fully receiving damages claims for negligence if they too were negligent in causing
the harm inflicted on themselves.
Issue:
Can Lisa, the plaintiff, sue George, the defendant, under the tort of negligence for forgetting to
pack his gardening tools and leaving his equipment out?
Rule:
If the plaintiff is injured due to the lack of care or thought of the defendant; the plaintiff has a case
of negligence against the careless/thoughtless defendant; as long as the following questions are
justified: (a) Did the defendant owe a duty of care to the plaintiff? Was the plaintiff’s situation
such that a reasonable person in the defendant’s position would have taken care to prevent harm
to the plaintiff? (b) Did the defendant breach his/her duty of care to the plaintiff? Did the defendant
take measures to prevent harm to the plaintiff? (c) Did the defendant's breach cause the plaintiff's
injury? (c.i) Was the defendant's breach the cause, in fact, of the plaintiff's injury? If the defendant
had not committed the breach, would the injury have occurred? (c.ii) Was the defendant's breach
the proximate cause of the plaintiff's injury? Was the injury the sort of thing a reasonable person
would anticipate as a result of their actions? (d) Did the plaintiff suffer a legally recognizable
injury? (e) Based on those questions, defenses for negligence can be established. This includes
comparative negligence, a defense that bars a plaintiff from fully receiving damages claims for
negligence if they too were negligent in causing the harm inflicted on themselves.
Application:
(a) George owed a duty of care to Lisa, since a reasonable contractor should be concerned about
the well-being of their client, and this duty would extend to the manner in which he leaves the site
once he is done with his job. (b) George breached his duty of care because a responsible, rational
contractor would not forget to pack up their gardening tools and would make sure to not leave his
rake unattended. (c) George’s failure to put away the rake was the main cause of Lisa’s injury. (c.i)
If George had properly packed his equipment, including his rake, Lisa would not have stepped on
the rake, thus, inflicting the injury. George should have anticipated that leaving his equipment
laying around is a safety hazard. (c.ii) A rake hitting Lisa’s face is the sort of problem that properly
stowing away your equipment is intended to prevent. (d) A hit to the face is bound to cause facial
bruising and a fractured nose, which are legally recognizable injuries, resulting in 2000 dollars in
medical expenses. (e) However, both Lisa and George have contributed to the loss sustained.
Seeing that Lisa was not paying attention while walking and stepped on the rake, Lisa contributed
to the damage she suffered.
Conclusion:
Since all the elements of negligence were met, Lisa can sue George for the damages caused by the
injury. George is only liable for 80% of the damages while Lisa is responsible for 20% of the
injury and damages that occurred.
Defenses:
■Under comparative negligence, damages are apportioned according to the defendant’s degree of
fault.
Ex: if the plaintiff sustained a $100,000 injury and he is 20% responsible, the defendant will be
liable for $80,000 in damages.
■The assumption of risk doctrine comes up in three ways:
–The plaintiff might have formally agreed with the defendant before entering a risky situation
that s/he will relieve the defendant of liability should injury occur.
–The plaintiff may have entered into a relationship with the defendant knowing that the
defendant is not in a position to protect him/her from known risks.
–The plaintiff may act in the face of a risky situation known in advance to have been created by
the defendant’s negligence.
■If the plaintiff had no actual knowledge of the risk, then s/he cannot be held to have assumed it.
Strict Liability:
The Restatement specifies six requirements, all of which must be met for a plaintiff to
recover using strict liability for a product that the plaintiff claims is defective:
1. The product must be in a defective condition when the defendant sells it.
2. The defendant must normally be engaged in the business of selling or otherwise
distributing the product.
3. The product must be unreasonably dangerous to the user or consumer because of its
defective condition.
4. The plaintiff must incur physical harm to self or to property by using or consuming the
product.
5. The defective condition must be the proximate cause of the injury or damage.
6. The goods must not have been substantially changed from the time the product was sold
to the time the injury was sustained.
Defenses:
■The defendant can be held liable even though the defendant has exercised all possible care.
Thus in a strict liability case, the plaintiff need not show fault or negligence.
■Defendants can include manufacturers, distributors, processors, assemblers, packagers, bottlers,
retailers, and wholesalers.
■There are a number of defenses available to defendants, including:
–Assumption of risk – similar to the defense in negligence.
–Product misuse.
–Comparative negligence – similar to the defense in negligence.
–Commonly known dangers (for example, it is not a defect for a knife to be sharp, or for a
curling iron to get very hot).
–The knowledgeable-user defense (electricians are expected to know how to safely use
complicated electrical equipment).
■Under product misuse, a plaintiff who uses a product in an unexpected and unusual way will
not recover for injuries caused by such misuse.
■As for the knowledgeable user defense – claim of whatever is “defective” is well known or
should be reasonably known to users.
Chap 32-Intellectual Property
Patents
Can X (the plaintiff) sue Y (the defendant) for patent infringement for doing xxxxx under the
relevant patent law?
A patent is a state-granted monopoly in return for full public disclosure of an innovation. To be
eligible for a patent or to establish that patent infringement has occurred the plaintiff needs to
prove that the invention is a novel, useful (have utility) process, machine, manufacture, or
composition of matter; or any new and useful improvement.
Process-A process, art, or method, and includes a new use of a known process, machine,
manufacture, composition of matter, or material. (For overlapping patents)
Machine-Particular apparatus for achieving a certain result or carrying out a distinct process.
Manufacture-Article or a product
Composition of matter-A new arrangement of elements so that the resulting compound is not
found in nature.
Improvement-An alteration of a process, machine, manufacture, or composition of matter that
satisfies one of the tests for patentability.
In the case of overlapping patents, both patent holders have to come together and create a form
of profit sharing agreement to effectively produce the product with both patents in parallel.
Possible defenses, you cannot patent:
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Laws of nature-The product is generic and naturally occurring
Natural phenomena
Abstract ideas, including algorithms
Example of application:it includes "In this case, the invention is a novel and non-obvious
method for increasing energy efficiency in industrial machinery. The patent application provides
a detailed description of the method, including its components and steps. Furthermore,
experimental data demonstrating the increased efficiency achieved by implementing the
method."
Three ways you can sue for patent infringement:
–The patent holder may seek damages and an injunction against the infringer in federal court,
requesting damages for royalties and lost profits as well.
–Even before being sued, the accused party may take the patent holder to court under the Federal
Declaratory Judgment Act, seeking a court declaration that the patent is invalid.
–The patent holder may sue an infringing user for royalties claimed to be due, and the infringing
user may counterclaim that the patent is invalid.
Trade Secrets
Can the plaintiff X sue the defendant Y for trade secret infringement (misappropriation of a trade
secret) under the law of trade secrets?
Trade secrets are a monopoly that the company hopes to maintain by preventing public
disclosures. To establish a claim of trade secret misappropriation, the plaintiff must demonstrate
that they had a valid trade secret, that reasonable efforts were made to keep it secret, that the
defendant acquired, disclosed, or used the trade secret through improper means, and that the
plaintiff suffered harm as a result.
Example of application: "In this case, the plaintiff asserts that they developed a unique
manufacturing process that provides a significant competitive advantage. They took reasonable
steps to maintain its secrecy, including limiting access to authorized personnel and implementing
non-disclosure agreements. The defendant, who was a former employee with access to the
process, started a competing business that employed a strikingly similar method. The plaintiff
contends that this constitutes misappropriation of their trade secret."
Possible defenses:
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General knowledge and skills that they developed on the job. Only specific trade secrets
are protected.
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Lack of Damage: If the defendant can show that they did not actually benefit from the
alleged trade secret, or that the plaintiff did not suffer any harm as a result of the alleged
misappropriation, this can be a defense.
Copyrights
Does the defendant's use of the copyrighted material of the plaintiff constitute copyright
infringement?
Copyright is a form of legal protection originally given to authors for their writings (don’t
include if the case is not about an author). It protects the expression of ideas in some tangible
form, it does not protect the ideas themselves. To establish copyright infringement, the plaintiff
must show ownership of a valid copyright (Valid: Fixed in a tangible medium of expression
and creative, at least to a minimum degree) and copying of original (Must have originated
with the author, does not need to be novel or unique) elements of the work. Additionally, the
plaintiff may need to demonstrate substantial similarity between the original work and the
allegedly infringing work.
Example of application: "In this case, the plaintiff is the creator of a novel and has obtained a
valid copyright for the work. The defendant, without permission, reproduced substantial portions
of the novel in their own work, which is substantially similar to the original. This copying
constitutes infringement of the plaintiff's copyright."
Possible conclusion: "Given that the plaintiff has established ownership of a valid copyright,
demonstrated unauthorized copying, and shown substantial similarity between the original work
and the defendant's work, it is likely that the court will find in favor of the plaintiff in the
copyright infringement claim."
Copyrights allow:
–The right to prevent others from copying his or her work.
–The exclusive right to reproduce the work in any medium (paper, film, sound recording), to
perform it, or to display it.
–The exclusive right to prepare derivative works based on the copyrighted work.
Works for hire copyrights are owned by the corporation hiring not the innovators.
Possible defense:
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Fair Use Doctrine-–use by reproduction in copies or phono records or by any other means
specified by section 106 of the copyright, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. Detriments of fair use: Purpose was of
commercial nature or is for nonprofit educational purposes, the amount of work retracted
from copyrighted material, the effect of this use.
Trademarks
Does the defendant’s use of a similar mark to that of the plaintiff’s trademark constitute (or allow
them to sue) trademark infringement/dilution under the federal trademark dilution act of 1995 or
The Lanham Act?
Federal Trademark Dilution Act-protects companies who have not yet entered certain industries
from consumer confusion that they have entered: Companies with marks that dilute the value of
a senior mark may be liable for damages. The act provides that owners of marks of significant
value have property rights that should not be eroded, blurred, tarnished, or diluted in any way by
another. Plaintiff must prove that trademark is: A famous mark, the similar use was commercial,
and such use causes dilution of the distinctive quality of the mark.
Lanham Act: The fundamental means of obtaining a trademark was through use. The
manufacturer or distributor actually must have placed the mark on its product or on related items
and then have begun selling the product.
A trademark is defined as any word,name, symbol, or device or any combination thereof adopted
and affixed or associated to a manufacturer or merchant to identify their goods and distinguish
them from goods manufactured or sold by others. For infringement (test for trademark
infringement is consumer confusion): To establish trademark infringement, the plaintiff must
demonstrate that they have a valid and protectable trademark, that the defendant used a similar
mark in commerce, and that there is a likelihood of confusion between the two marks. A valid
and protectable trademark includes distinctive words, symbols, or designs that identify and
distinguish the source of goods or services. The strength of the mark (e.g., arbitrary, suggestive,
descriptive, generic) and the degree of similarity between the marks are important factors in
determining likelihood of confusion. For dilution: To establish a claim of trademark dilution,
the plaintiff must demonstrate that they have a famous and distinctive trademark, that the
defendant's use of a similar mark is likely to cause blurring or tarnishment of the plaintiff's mark,
and that the defendant's use is commercial in nature. A famous mark is one that is widely
recognized and highly distinctive. Blurring occurs when the defendant's use of a similar mark
diminishes the uniqueness or distinctiveness of the famous mark. Tarnishment occurs when the
defendant's use creates negative associations with the famous mark.
Example of application: In this case, the plaintiff, XYZ Corporation, has a widely recognized
and distinctive trademark, "LuxoShine," for their high-end automotive detailing products. The
mark has been in use for over a decade and has gained significant recognition in the industry.
The defendant, ABC AutoCare, recently introduced a line of automotive cleaning products under
the name "LuxoShine Pro." This use of a similar mark for a related product may potentially lead
to blurring, as consumers may associate the plaintiff's mark with a broader range of products.
Furthermore, if ABC AutoCare's products are of lower quality or receive negative reviews, this
could tarnish the reputation of XYZ Corporation's famous trademark.
Possible defenses:
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Genericness: If the mark in question is a generic term commonly used to describe a
category of goods or services, it may not be eligible for trademark protection under the
Lanham act or the federal trademark dilution act.
Non-Infringement: The defendant may argue that their use of the mark does not actually
infringe upon the plaintiff's trademark. They might contend that there is no likelihood of
confusion between the two marks.
Parody or Satire: In some cases, the use of a trademark in a parody or satirical context
may be protected under the First Amendment as free speech.
-Example of infringement: 2 companies in the same industries e.g. Coke and Koke
-Example of dilution: 2 companies in different industries and the dilution stops the plaintiff from
entering the industry. E.g. A company uses the trademark of coca cola to put it on toys and stops
coca cola from potentially entering the toy industry.
Vicarious Liability
Vicarious liability is a legal concept that falls under the category of "Negligence." It is not a form
of strict liability.
In a vicarious liability situation, an employer or principal can be held liable for the tortious acts
of their employees or agents if those acts were committed within the scope of their employment
or agency. This means that even if the employer or principal themselves did not directly commit
the wrongful act, they can still be held responsible for the actions of their employees or agents
while they were acting in the course of their employment or agency.
This concept is based on the idea that employers or principals benefit from the work or actions of
their employees or agents, and therefore they should also bear the responsibility for any harm
caused by those actions within the scope of employment or agency.
It's important to note that vicarious liability is not applicable to situations of strict liability. Strict
liability holds a party responsible for certain actions regardless of fault or intent, whereas
vicarious liability is rooted in the principle of negligence, which involves the failure to exercise
reasonable care in a given situation.