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Dow Chemical Company v. Mahlum12/31/1998
Indeed, the evidence is that it did not.
In another silicone breast implant case, Artiglio, the California Supreme Court stated, " hile the trademark and tradename agreements may have conferred upon Dow Chemical certain inspection rights, there is no suggestion that the agreements imposed a duty to perform tests, let alone that they constituted a general undertaking by Dow Chemical to guarantee the safety of Dow Corning's silicone product lines." Artiglio, 957 P.2d at 1320. The court found no evidence that Dow Chemical inspected any Dow Corning product or provided any service to Dow Corning pursuant to such agreements. Id. As noted above, the Artiglio court ultimately rejected the claim that Dow Chemical was liable under section 324A.
The Eighth Circuit Court of Appeals reached a similar decision in TMJ Implants. In the that case, the Eighth Circuit considered the trademark agreement at hand pursuant to an argument that Dow Chemical was liable under a theory of negligent undertaking for damages caused by Dow Corning TMJ products. Plaintiffs argued that Dow Chemical assumed a duty with respect to TMJ implants by undertaking to render services to Dow Corning through trademark agreements. The Eighth Circuit rejected the argument:
"The record . . . contains no evidence to show that Dow Chemical undertook to render services to Dow Corning through its trademark agreements. A standard trademark agreement, in and of itself, does not establish an affirmative duty to inspect that could result in tort liability to third parties, and nothing in the record suggests that these are other than standard trademark agreements. Plaintiffs can point to no evidence that Dow Chemical in fact inspected any Dow Corning product or provided any services to Dow Corning pursuant to these agreements. These agreements can only be viewed, then, as a vehicle for Dow Chemical to protect its intellectual property rights, and thus they do not represent an undertaking on the part of Dow Chemical to render services to another. Accordingly, these agreements do not trigger section 324A." TMJ Implants, 113 F.3d at 1494 (citations omitted).
In other product liability cases, plaintiffs have argued that the existence of control language in a trademark agreement can make a defendant licensor liable for failure to inspect a product bearing its trademark but made by another company. But existence of language of control in such an agreement does not make the licensor liable for defects in the licensee's products.
"Under this body of law, the sole consequence of a trademark owner's failure to exercise control over its licensees is the potential loss of the rights associated with the trademark. None of these cases suggests, in any way, that a trademark owner's failure to exercise control subjects the owner to affirmative liability in tort for damages caused by a defective product bearing its trademark." Burkert v. Petrol Plus of Naugatuck, Inc. , 579 A. 2d 26, 32 (Conn. 1990) (citing S. Sandrock, Tort Liability of a Non-Manufacturing Franchisor for Acts of Its Franchisee, 48 U. Cinn. L. Rev. 699, 706 (1979)).
Like the plaintiffs in Artiglio and TMJ Implants, the Mahlums argue that Dow Chemical assumed a duty of care towards them by performing certain toxicological tests on liquid silicones for Dow Corning and by maintaining a "relationship of control" over Dow Corning. They rely on Dow Chemical toxicologist Dr. V. K. Rowe's various connections to DOW Corning's silicone testing as a basis for Dow Chemical's undertaking of this duty. My review of the record compels me to disagree.
The Mahlums and the majority emphasize, without fully describing their nature, the multitude of tox
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