Business Law Quiz 2

intellectual property

not real or personal property

intellectual property

trademark, patent, copyright

trademark

a word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services

trademark

Coca Cola for soft drinks

benefits of federal protection for trademark

protects the trademark from being registered by others without permission and helps you prevent others from using a trademark that is similar to yours with related goods or services

patent

technical inventions such as chemical compositions like RX drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable inn some type of industry.

patent

a new type of hybrid machine

benefits of federal protection for a patent

safeguards inventions and processes from other parties copying, making, using, or selling the invention without the inventor’s consent

copyright

artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital formal

copyright

song lyrics to let it go from frozen

benefits of federal protection for copyright

protects your exclusive right to reproduce, distribute, and perform or display the created work, and prevents other people from copying or exploiting the creation without copyright holder’s permission

trademark

enables consumers to identify the product with the producer—consumers are moving fast

yes

can color be a trademark

register a trademark

• submit a drawing of the mark

  • indicate when it was first used in interstate commerce and how it is used

registration with the U.S. Patent and Trademark Office

enables owner recover damages from an infringer using the trademark to sell its own goods

lanham act

product trademark, service marks, collective marks, certification marks

trade dress

appearance of a product that has acquired secondary meaning; entitled to same protection as trademark

succeed on claim of infringement

• is primarily nonfunctional

• is inherently distinctive or has acquired a secondary meaning

  • alleged infringement creates a likelihood of confusion

examples of a trade dress

• unique shape of Coca Cola bottle

trademark infringement

problem in Toys R Us suing Kids r Us

factors of confusion

• strength of the senior user’s marks

• proximity of the products

• degree of similarity between the marks

• likelihood that plaintiff will bridge the gap

• evidence of actual confusion

• junior user’s good faith

• quality of the junior user’s product

• sophistication of the purchasers

  • junior user’s goodwill

utility patent

• may cover any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof

20 years

how long is a utility patent valid

make improvements

what can you do to continue a utility patent after 20 years

design patent

may cover any new, original, and ornamental design for an article of manufacture

15 years

how long is a design patent valid

patent criteria

• able to be used—-not just a theory

• a clear description of how to make and use the invention

• new or novel—something not done before

  • not obvious—not a trivial or predictable improvement easily devised from existing technology

obtaining a patent

• applicant contacts an attorney licensed to practice in the Patent office

• search for prior art to ensure no other similar patent exists

• patent application is filed with the Patent Office

  • patent is issued if all criteria is met

copyright protection

• the life of its creator plus 70 years

  • 95 years after the date of publication or 120 years after creation, in the case of a publisher

fair use doctrine

putting a pdf of a public work in canvas

trade secret

a process, product, methods of operation, or compilation of information used in a business unknown to the public

common law

what law is a trade secret protected by

condition of trade secret

must be kept secret and must comprise elements not generally known in the trade

what a plaintiff must plead

• the existence of a trade secret

• that the trade secret was protectable

  • that it was misappropriated by the defendant

trade secret under the DTSA

• owner has taken reasonable means to keep secret***

  • the fact that it’s a secret makes them money

6 factors of trade secret

• existence of knowledge of the information outside of the business

• extent of knowledge of the information within the business

• measures taken to protect the alleged secret

• the information’s value

• he amount of resources used in creating the information

  • the difficulty of legitimately acquiring or duplicating the information

international intellectual property law

offered through multilateral conventions and treaties

TRIPS

• national treatment policy

  • most favored nation policy

national treatment policy

forbids discrimination between a Member’s own national and the nationals of other Members

most favored nation policy

forbids discrimination between the nationals of other Members

contract

legally enforceable bargained for exchange of promises or an exchange of a promise for an act

yes

is a standard NDA a contract

freedom of contract

the ability of parties to bargain and create the terms of their agreement as they desire without outside interference from the government

common law

contracts for things other than the sale of goods

examples of common law

real and personal property, searches, employment contracts

criteria to form a valid contract

• legal offer

• legal acceptance

• consideration

• genuine assent

• competent parties

• legal object

legal offer

• shows object intent to enter into a contract

• must be definite in nature

  • must be communicated to the offeree

methods of termination of an offer

• rejection by the offeree

• revocation by the offeror

• lapse of reasonable time

• death of either party

  • destruction of the subject matter

termination of offer

under common law of contract, a counteroffer is a rejection of the original offer followed by the proposal of a new offer

pay

what can you do to keep an offer open

accepted

offer can be withdrawn by offeror before it has been accepted

acceptance

• an objective intent to accept must be shown by the offeree

• intent must be communicated by reasonable or proper means

  • mailbox rule

mailbox r5ule

offer deemed accepted once offeree sends acceptance not when offeror receives it

common law mirror image rule

acceptance must mirror the terms of the offer

statutory law does not apply

common law applies where…

consideration

what each party gives or gives up—something of value

bargained for exchange of promises

ex: money, goods, services, promises

sufficiency

the fact that it’s there and is something of value

illusory promises

promises that look or sound like a promise but are enforceable because one party’s promise is so vague or discretionary that it does not actually bind them to anything

preexisting duty rule

if a party merely agrees to do what he/she is already required to do, there exists no actual detriment to the promisee

promissory estoppel

used to enforce certain promises without consideration

required for doctrine of promissory estoppel

• a promise justifiably relied on by the promisee

• substantial economic detriment to the promisee

  • an injustice that cannot be avoided except by enforcing the contract

promissory estoppel example

Yad work mistakenly performed at your address, but you saw and didn’t stop them—you will owe payment for the services

competancy

ability to understand the nature of a transaction and the consequences of entering into it at the time the contract was made

competency

minors, insanity, or intoxication

genuine assent

agreement to a contract that is free of fraud, duress, mental coercion, and mutual mistakes

factors that prevent genuine assent

• fraud

• duress

• undue influence

  • mistake

fraud

misrepresentation of a material fact made with intent to deceive the other party

duress

wrongful act or4 threat that prevents one from exercising free will(includes economic ruin or embarrassment

undue influence

mental coercion exerted by one party over the other party to a contract

mistake

error as to material fact

bilateral mistake

error is made by both parties

unilateral mistake

error is made by only one party to the contract and other party knew/should have known about

no

do contracts have to be in writing

states’ statutes of frauds

lists which types of contracts MUST be in writing to be valid

contracts that must be in writing

• contracts for the sale of an interest in land

• contracts to pay the debts of another

• contracts not performable in one year

  • sale of goods of $500 or more

exceptions to sale of goods $500 or more

• one of the parties admits to the existence of an oral contract

• buyer accepts and uses the goods

  • contract is between merchants, and the merchant who is sued received a written confirmation of the oral agreement and did not object within 10 days

inked signature or written document

having what is not a formality

parol evidence rule

courts will only look at the final contract between the parties to see what the parties agreed to

assignment

when a part to a contract (the assignor) transfers rights and duties of contract to another "(the assignee)

methods of discharging a contract

• performance

• material breach of contract

• conditions precedent and subsequent

• impossibility of performance

  • commercial impractibility

discharge by performance

fulfilling contractual obligation by doing what was required by the terms of the agreement

substantial performance

• a good faith effort to complete the rest of the terms

• no willful departure from any of the material terms

material

something that matters

material breach

substantial and usually intentional failure to perform a material (important) part of the contract

condition precedent

a particular event that must take place to give rise to a duty to perform contract

condition subsequent

a particular event that, when it follows the execution of a contract, terminates the contract

condition subsequent

you hire a delivery driver and agree to employ the driver “unless the driver’s license is revoked” the driver’s license is revoked

condition precendent

you agree to hire an employee if the employee passes a criminal background test. The individual fails the criminal background test.

impossibility of performance

situation where a party cannot legally or physically perform the contract

commercial impracticability

station that makes performance of a contract unreasonably expensive or injurious to a party

• must not be caused by the party suffering it

impracticability

what is the cost of supplies going up not considered