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Knockoffs and Products Liability

Knockoffs and Products Liability

Counterfeits and knockoffs have long been a staple of the global consumer marketplace. Paying full price for a watch or a pair of shoes only to receive a cheap imitation of the real thing is frustrating. But when a knockoff product causes an injury, the injured person may feel as though there’s no legal recourse available, because the product’s manufacturer is hard to identify. But products liability law gives injured consumers powerful tools for pursuing compensation even if the origin of a product isn’t immediately known.

Every business in a product’s chain of custody is potentially liable

Under Nevada’s products liability law, it isn’t just a designer or manufacturer that is potentially liable for injuries caused by a defective product. Anyone involved in marketing the product may be held responsible as well. This has been the rule since the Nevada Supreme Court’s 1966 decision in Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, in which the plaintiff sued both the manufacturer and distributor of a bottle of Squirt that contained a dead mouse. The Court pulled no punches in letting the suit go forward against the soda’s distributor: “By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising, and otherwise, they do everything they can to induce that belief.”

The Court in Dolinski adopted the rule of strict products liability, which provides that a plaintiff can shift the burden of proof to the defendant in a case where certain elements are met. The defendant must be the manufacturer or marketer of the product, which was defective when it left the defendant’s possession. The plaintiff, meanwhile, used the product in a reasonably foreseeable way, and was injured by the defect. Ginnis v. Mapes Hotel Corp., 86 Nev. 408 (1970), Nev. J.I. 7.02. In such cases, a defendant can be held liable without the plaintiff first proving the defendant’s negligence. Hence it is called “strict” liability.

The original designer is a potential ally

As a practical example, say a cyclist buys a replacement seat post for her bike on Amazon. Thinking she’s getting a high-end carbon-fiber post, she’s disappointed when it arrives packaged only in a plastic bag and looking a little rough around the edges. She shrugs and installs the post anyway. A couple rides later, the post suddenly cracks when she goes over some rough pavement, causing her to crash and suffer serious injuries. When she contacts the manufacturer she thinks built the post, it quickly becomes clear that the post isn’t genuine.

Suing Amazon for selling a defective product is an option for this cyclist. If the seller was not Amazon itself, but one of its marketplace sellers, she may need to sue them as well. Bear in mind that the consumer isn’t the only one harmed by knockoffs: the creator of the copied product has a financial interest in identifying the sources of knockoffs so it can shut them down. In some cases the original manufacturer might even be a useful ally to an injured consumer who is mustering legal resources to pursue a potentially shadowy overseas defendant.

GGRM is a Las Vegas products liability firm

For almost 50 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in cases involving personal injury, products liability, and workers’ compensation. If you have been injured by a defective product and would like to understand your options for seeking recovery, we are here to help. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.