Business Torts and Intellectual Property

A tort is a breach of duty owed to another person. The tort suits usually happen from instances of recklessness or bad behavior. The law of tort develops through decided cases that reflect social values, the standard of the community, and the way people deal with each other in the community. For businesses, the tort law has become a key concern because it leads to a tort liability that is considered a significantly illogical expense.

Torts are classified based on the harm inflicted such as negligently, intentionally, or without fault. A business is involved in a tort action in three ways, which include a person being harmed by the actions of a business or its employees, a person being harmed by a product manufactured or distributed by the business, or a business being harmed by the wrongful actions of another business or person. The injured person or property must legally be the result of the actions of another to have legal action in tort.

Businesses and persons are liable for negligence in their conduct if the aggrieved party shows that the wrongdoer owed a duty to him, the duty of care owed was breached through some acts, there is a connection between the wrongdoer’s negligent behavior and the resulting harm to the injured party and that the party suffered actual harm as a result of the negligent conduct.

Case: Moran v. Sims

Real property includes land and things attached to it or under it. In law, the property is legally protected and a person has a right to deny others the use of a property he has an interest in. In this case, Sims had filed a complaint seeking an easement from the court on the use of a driveway. Sims testified that he and his predecessors had used the driveway running across Moran’s property for the past fifty years.

The evidence by his driver sufficiently showed that he had used the driveway for the last year to pick children from school. The Court of appeals relied on the Rutland v. Stewart case where the principles used stated that an easement may be acquired if there is ten years use that is peaceful, open, notorious and visible, hostile, under a claim of ownership, exclusive and continuous, and uninterrupted. Permission from the record title owner will make the use permissive and not difficult. It was visible that the driveway had been used by Sims and his predecessors for the last fifty years.

Moran argued that Sims and his predecessors had implied permission to use the driveway and they had never proven the negative, that they did not have permission to use the property. Consent to use the driveway may be incidental from the evidence but cannot be presumed in the absence of evidence. In this case, consent was not shown. The implied permission to use the driveway was proven by the fact that the owners of the land where the driveway run never objected to its use. However, it was argued that lack of objection is not equivalent to consent. Sims claimed ownership using the evidence from the person he hired to deliver and spread the gravel for the driveway.

Their home was the only one located on the driveway and this showed consistency with an exclusive claim to the right to use the property. There was enough evidence showing that the driveway was exclusively used by the Sims family and those whom they implicitly permitted to do so. They testified that there was no evidence of dispute with the prior owners of the property and by the time Moran filed a complaint the prescription had long since run. The deed clearly showed that the driveway had been long in use. The basics of adverse possession were sufficiently proven.

Moran claimed there was an error in granting the prescriptive easement to Sims until an accurate description of the same was determined. The court granted an easement in the existing driveway as sufficient evidence was presented of no change of its location. However, it was certainly the right of the two landowners to decide whether they wished to employ a surveyor to give a different prescription. The chancellor awarded Sims a prescriptive easement that allowed him the use of the driveway on Moran’s property. The Morans saw this as an infringement and decided to appeal the case.

Case: Audi AG v. D’Amato

Intellectual property is an intangible asset and may be invisible, impossible to hold, and harder to value compared to physical property. The law protects the intellectual property owners by allowing them to sue to incase of infringements. Infringement may be unauthorized use of the intellectual property in violation of the rights of the owners and this results in a tort action. In this case, Defendant used the logo and the trademark of Audi in selling his goods and services. Audi sued him for infringements and dilution of its world-famous trademarks. He was also accused of violating the cybersquatting Consumer Protection Act. The court found that he had no right to use the website.

D’Amato testified that he had been given authority to display the trademark by a salesman but the plaintiff proved that no other person or agent had the permission to use the trademarks. The plaintiff had not contracted any other person the use of his trademarks. The principle used in deciding this case state is that a trademark identifies and distinguishes the goods of a person. In this case, there was evidence of trademark infringement and a possibility of confusing the public when buying goods and services. The likelihood of confusion was proved since the plaintiff’s trademark was strong; the goods sold by the defendant were related and confused the public.

The records provided showed that Audi’s trademark was worth millions and was known all over the world. The more distinct a mark is the more likely the level of confusion to the public. The law protects the rights of intellectual property holders to maintain the integrity and the distinctive feature of trademarks. Thereafter, the courts found the marks used by D’Amato were Audi’s actual trademarks. Audi’s trademarks were distinct and famous. The defendant argued he had put a disclaimer on his website to prevent the customers from being confused, but this was found not to relieve him of his liabilities. He also argued that the plaintiff did not have evidence of actual confusion.

The plaintiff had to show that the defendant had acted in bad faith and the actions had a commercial intent. The action was intended to divert customers from the original owner of the trademark. Even though he changed the website to non-commercial use before the complaint was filed this did not relieve him of the liabilities. He defended himself that he had removed the trademarks when Audi was filing the case. He had changed his website to noncommercial. The plaintiff had to prove the dilution of the quality of his trademarks. The plaintiff claimed that the defendant had used the website to profit himself. The defendant was awarded the attorneys’ fees and a permanent injunction was issued. The defendant was prohibited from using his domain name and the website.

Questions and Answers

It is efficient to have the exclusive real property rights assigned throughout the useful life of an asset. In real property diffusion of information on how the asset was developed is a lesser concern whereas; with intellectual property diffusion of information is an important concern. The title to own intellectual property is not permanent since it can be curtailed by subsequent innovation in the market that will super cede their technology. A small piece of real property can be used by only a few people whereas the same small piece of intellectual property can be used by many people at the same time.

If real property is stolen it can be returned with its value undiminished whereas, with intellectual property, its theft declines the value to zero. Intellectual property can be enjoyed by many users without declining its value as long as the property controls are in use. A real property which is abandoned can pass to an adverse possessor whereas an abandoned intellectual property passes to the public. Property is legally protected even where a person has a right to use the land however he likes. If someone owns a land that contains rare plants that are protected under the endangered species act, his use of that land will be limited to regulations concerning the protection of that plant.

Real property has the dangers of overuse while overuse of intellectual property may be an advantage to the society for example reading an authors book. The law protects the intellectual property owners by allowing them to sue incase of infringements. The real property owners can also sue incase of trespass. The law protects the rights of intellectual property holders in order to maintain the integrity and the distinctive feature of trademarks.

A copyright provides creators of books and songs the exclusive right to control how their work is being used. A trademark must be distinctive. It protects the goodwill and the identity of a product or service in the market place. Any person with a trademark has a right to stop others from using the same trademark. Copyright protects all original terminology apart from names and short phrases. A trade mark law protects the name of a product or service while copyright law protects any additional honest appearance that the advertisement contains. A utility patent protects the features of a manufactured item.

The Utility patent comes about as a result of innovation. The design patent protects the shape of a product. The plaintiff has to prove the distinctive feature of the trademark used by the defendant when buying and selling of goods and services.

Servitudes are limitations about the use of property and they impose certain limits to the owners of the property. An easement is the right to enter land that is owned by another person and make certain use of it or take something from the land. An easement can be attached permanently to the property or it can be for a set time. A conservation easement may be unlimited in its duration. Easement like a deed explains the use of certain property that is conveyed from the property owner to the easement holder.

They transfer title and are in a written form. They recognize the original owners, the new owner and they give details about the land. People are allowed to agree on the servitudes they wish and most homes have servitudes for utilities and public side walks. The easements can be sold to neighbors who need to use somebody else’s property.

Once an easement is granted the property owner must not interfere with it unless there is an agreement with the easement holder. They are a real evidence of covenants. The acceptance of the holder is recorded and the records and the formalities and their effects are being left at the registry system. A conservation easement is unlimited in its duration. Easement like a deed explains the use of certain property that is conveyed from the property owner to the easement holder.

A positive easement allows its holder to go on the estate for certain purposes while a negative easement would be giving up a right of the owner such as agreeing with the Nature conservancy to conserve and protect rare plants that exist on your land. Servitudes guide the land owners on how to use the property (Meiners, et al 2008).

Reference List

Meiners, R., Ringleb, A., & Edwards, F. (2008). The Legal Environment of Business. Chicago. Cengage Learning.

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