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ENTREPRENEURIAL LAW > Exam 2 > Flashcards

Exam 2 Flashcards

(67 cards)

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1
Q

Advertising

A

must be truthful and not false, misleading, unfair, or deceptive

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2
Q

commercial speech

A

speech done on behalf of a company. not fully protected by 1st Amendment, limited by law. A US legal term relating to speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

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3
Q

Truth in Advertising

A

based on “net impression of the average consumer. FEDERAL TRADE COMMISSION MONITORS.

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4
Q

FTC

A

Federal Trade Commission - governs advertising and marketing claims

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5
Q

Use of Disclaimers

A

disclaimers can’t cure otherwise deceptive ad - they add DETAIL or CONTEXT

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6
Q

substantiation

A

Proof of claims through. scientific studies, surveys. Recommended to keep a back-up file.

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7
Q

testimonials

A

still limited to truth and reasonable consumer results - use disclaimers. Cannot be deceptive. (VOLVO). Jared

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8
Q

express warranty

A

If you say it will do something, it must. If not you must refund, repair, or replace. Explicit guarantee by the seller that the goods will have certain qualities 2 requirements:

1 - Seller must make statement or promise
2 - Buyer must rely on the sellers statement

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9
Q

consumer remedies

A

refund, replace, repair

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10
Q

puffing

A

expressing an opinion about the quality of goods. “We have the best pancakes” no survey, just stating their opinion.

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11
Q

Kellogg

A

Frosted Mini Wheats claimed 20% more cognitive function - all breakfast does!

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12
Q

Danon

A

health claims about digestive functions and not getting cold & flu

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13
Q

Green Guides

A

substantiate claims

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14
Q

3-Day Rescission Rights for door-to-door selling

A

you weren’t in the market for product, you have no place to retreat, no opportunity to research

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15
Q

Health Claims are subject to:

A

Food & And Drug Administration - any health related claims are also subject to the FEDERAL TRADE COMMISSION.

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16
Q

Why certain industries are heavily regulated

A

emotional (funerals - hard to think clearly, expensive, relying on word of seller)
hard for consumers to verify
unsophisticated
trendy (Made in USA or green)

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17
Q

Torts Definition:

Torts - 3 Types:

A

type of civil law where there is personal injury or property damage. based on standard of reasonable behavior in society.

1 - Intentional
2 - Neglegence
3 - Strict Liability

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18
Q

Intentional Torts

A

Harm to person, harm to reputation, or harm to business (assalt, battery, false imprisonment, slander, libel)

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19
Q

assault

A

fear of immediate touch

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20
Q

battery

A

harmful or offensive touch

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21
Q

false imprisonment

A

detaining someone without their permission

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22
Q

slander

A

saying harmful things about someone’s reputation

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23
Q

libel

A

printing harmful things about someone’s reputation

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24
Q

right of privacy

A

personal info is protected

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25
right of publicity
right of individual to control commercial use of their name (Vanna White and Samsung)
26
ultimate defense of defamation
it's true
27
Harm to Reputation: (Intentional)
unnecessary to prove how a person was damaged - disparage a person in their profession, accuse someone of a crime, chastity of a woman, foul or loathsome disease
28
interference with business
interfere with contracts, prospective contract, or business advantage (dump gravel in driveway)
29
unfair competition/trade practices
``` consumer confusion (trademark/similar business) consumer disadvantage (collusion) ```
30
Industries Heavily Regulated
Emotional, high risk. Funerals, unsophisticated, trendy (made in USA or GREEN). Tobacco, alcohol.
31
Negligable Torts
duty of care or protection was breached, harm was foreseeable
32
proximate cause
breach of duty was connected to the harm and there was a foreseeable chain of events
33
Strict Liability Torts
doesn't matter the reason, you are still liable
34
inherently dangerous
fire, explosives, crop dusting, pile driving
35
employers are responsible for acts of their employees:
1. during regular hours of employment 2. acting within the nature of employees job 3. acts that further employer's business
36
detour
employee was still on the job - quick stop (liable)
37
frolic
employee has strayed too far and the employer is not liable
38
assumption of the risk
knew the danger and participated anyway (warning signs, swimming pool, hockey)
39
contributory negligence
courts throw out the award - plaintiffs contributed to their own negligence
40
comparative negligence
minimize award based on both parties involvement
41
Why do news companies say "allegedly"
to protect themselves from being charged if the crime was not committed by the person.
42
proximate cause
In a negligence case, ask if the breech of duty was connected to the harm or was there an unforeseeable chain of events? is an event sufficiently related to a legally recognizable injury to be held to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Harm that happened is very unrelated.
43
3 types of damages
1 - Monetary Damage 2 - Reputation 3 - Emotional`
44
Inherently Dangerous
fire, explosices, crop-dusting, pile driving, the person doing these is strictly liable no matter what precautions were taken.
45
Product Liability
Manufacture is responsible for defects in design and production - recalls don't change liability just lessen exposure. toys cars, etc.
46
Respondeat Superior
(Latin) for the Boss is always in responsible for employees acts.
47
Employees are responsible for 3 cases of employees:
1 - During hours of employement 2 - acting within the nature of the employees job. (helping someone after hours) 3 - acts that further companies business (delivery afta work)
48
Employee was still on job. quick stop, employer liable.
Detour
49
Means that employee had strayed too far and the employee is not liable
Frolic
50
How to defend?
``` If one of the Elements is missing 1 - Duty 2 - Forseeable 3 - Proximate 4 - Damages. ```
51
Assumption of the Risk
Knew the danger or warned the danger and participated anyway (sports, swimming pool, trampoline park, warning, signs.) Jacob's parachute idea.
52
Contributory Neglegence
Being part of the problem. Plaintiff cannot receive reimbursement
53
Comparative Neglegence
If plantiff is less than 50% responsible for injuries, then they can receive recovery for loss.
54
Patents
is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention
55
Provisional Patent
temporary, 1 year grace period after disclosure. Foreign law must file before disclosure.
56
Who as the right to an idea? first to invent or first to file?
first to file.
57
Patent Life?
17-20 years AFTER FILING
58
Trademarks How long do they last??
a symbol, word, or words legally registered or established by use as representing a company or product. HARLEY DAVIDSON, NBC, red border NBC. 10 years, but can be renewed.
59
Two ways to get trademark
1 - common law | 2- federal registration with USPTO(United States Patent and Trademark Office). (sales also offer registrations)
60
Trademarks?? Who owns it first? File? or use?
Use. however filer gets the presumption of rights and first user must challenge rights.
61
Cant register these types of trademarks
``` confusingly similar to prior rights generic or descriptive words surnames (with exceptions) deceptive or misdescriptive name of living person without consent. ```
62
CopyRights
is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. This is usually only for a limited time. CANNOT RENEW. DOES NOT PROTECT THE IDEA
63
Copyright Duration post ____ year
1978. Life of the author, plus 70 years. Corporation 95 after publication or 120 after creation.
64
Copyrights limited use?
Limited time Monopoly. made public so people can build off of it.
65
Patents
STRONGEST PIECE OF intellectual Property. FOR INVENTIONS. is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention
66
Patent Life
monopoly to make, use, and sell for 17-20 years. Must file within 1 year of sale or public disclosure for rights in the US.
67
Patents ideas must be: (3 things)
Novel Useful Non-Obvious

ENTREPRENEURIAL LAW (2 decks)

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