Managment 211 Final

Not as highly protected

Speech that advertises a product or service for profit or business services (labeling is included)

Protected by the constitution, but not to the same extent as individual speech.

Distinguished between market places of ideas, and a market place of goods and services

1. Is the advertising lawful and not misleading?

2. Does the gov't have a substantial interest in regulating speech?

3. Does the regulation directly advance their interest?

4. Is the regulation narrowly tailored? (suitable alternatives)

One of the first federal agencies, authorized to indentify "unfair methods of competition and unfair or deceptive acts or practices"

FTC Act

Goals include: promote competition, protecting consumers

The have authority.

Explicit Statements made about a product, words or pictures.

Example: Cambells soup ad with all the vegetables at the top or the Volvo car commerical with the monster trucks running it over

Ads are deceptive because of what the ad does not say, that a reasonable consumer would find important.

Example: AOL Free Trials, you have to cancel on  your own, but they wont tell you that; 2 for 1 deals

Make up the second opinions about a product. They need to be honest, and experts need to be real.

Example: Toothpaste commercials w/ fake dentists.

Passed in 1946

Trademark registration

Gives competitors the right to sue each other for false and misleading advertising

The ad its self is mostly (literally false)

The court will prove this without proof of customers being misled

A substantial number of consumers were actually misled or damaged.

At least fifteen percent actually believed the ad.

BUYER BEWARE

-You purchase goods at your own risk, there wasn't much you could do if it didn't work.

-Mid 20th century the court decided that there was SOME liability

Liability without regard to fault or intent

If you make an "unreasonably dangerous" product, then you are liable because you made it.

Focus on the dangerous product not on the behavior of the company

The problem with traditional contract law used with the products liability.

-2 parties involved have privity of contract, so only they have duties and rights to be sued upon. No other person can sue.

-Example: someone being burnt on someone elses toaster couldnt sue

Does away with Rule of Privity

If you are injured by the product, even though you didn't buy it, you can still sue. You don't have to be in contract to sue.

-A person who deals in goods of the kind involved in the sale.

-A person whose occupation indicates that he has special knowledge or skill regading goods involved (optomotrist selling contacts)

-Someone who hires a merchant to act on his behalf

Under the UCC, merchants selling products make this. The goods are going to be fit for thier ordinary purpose.

-Any foreseeable user can sue for injuries (even third parties)

Can avoid doing warrant of merchantability

You have to say something like "we can't gauruntee merchantability"

Can be spoken, not written

Parties are free to set what is the damage that the breach of contract is worth.

Liquidated damages amount- sets howmuch is in the contract in case there is a breach- the dollar amount

The courts give the plaintiff benefit of the bargain

" What was the value of the contract and how much of that value did you get?"