Gen Bus 301

what is the common law?

body of law originating in England and derived from judicial decisions. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the judgements and decrees of the courts recognizing, affirming, and enforcing the usages and customers of society (ex:torts)

how does a trial work?

- plaintiff (person suffering the injury) brings the lawsuit

- plaintiff commences the lawsuit in the trial court

- plaintiff sues the defendant... the alleged wrongdoer

- judges decide the legal matters and if there is a jury, the jury will decide matters of fact in dispute

what is the burden of proof

the requirement that the plaintiff (the party bringing a civil lawsuit) show by a "preponderance of evidence" or "weight of evidence" that all the facts necessary to win a judgment are presented and are probably true. In a criminal trial, the burden of proof required of the prosecutor is to prove...

3 different burdens of proof

- ordinary civil action

- middle burden of proof - heightened standard

- criminal cases

when do you have a "duty" to be non-negligent?

our duty to act in a non-negligent manner arises by operation of law (as contracted, for example, to our duties that arise by agreement of statutorily)

emotional costs associated with jurisprudence

a confrontational process (fear of losing, embarrassment associated with bad judgement, invasion of privacy and self-doubt)

define nature of the law

a set of predictions of legal outcomes (relied upon by us to create stability, achieve justice and the orderliness of human activity)

necessary characteristics of law

1. certainty (or predictability)

2. flexibility/ elasticity

3. knowability (intuitive)

4. reasonableness

types of duties

1. tort (civil) - a violation of a duty imposed on each of us by civil law (by operation of law)

2. criminal - a violation of a duty imposed on each of us by a criminal statute (by the state)

3. contract (civil) - a violation of a duty undertaken by our agreements (voluntarily - freedom of contract)

compare intentional torts (torts caused by deliberate action)

assault, libel, slander, etc - defendant intends to cause the consequences of the defendant's acts of should realize with reasonable certainty that the consequences will result from the defendant's acts

compare criminal negligence

ex: homicide by negligent operation of a motor vehicle - when will distracted driving because of cell phone will result in a charge of criminal negligence?

duty of care

there must be a duty of care owed by the defendant to the plaintiff (person who suffers the loss) if the defendant's negligent conduct ought to have been reasonably foreseeability by the defendant

breach of the duty of care

if you conclude that there is a duty of care owed by the defendant to the plaintiff, then you must show that this duty of care was breached (this is the act of negligence)

standard of conduct

what was the degree of carefulness that a reasonable person would have exercised in a given situation?

wisconsin public policy considerations in determining whether there is proximate cause

1. injury too remote

2. injury out of proportion to negligent act

3. in retrospect, it appears extraordinary that negligence caused the harm

4. unreasonable burden on defendant

5. lead to fraudulent claims

6. no sensible or just stopping point if claim in allowed

3 burdens of proof

Ordinary civil action

- to a reasonable certainty

- by the greater weight of the credible evidence...

- that the defendant is probably liable

Middle of burden of proof - Heightened Standard:

- to a reasonable certainty...

- by evidence that is clear, satisfactory, and convincing...

- that the defendant is probably liable

Criminal cases:

- beyond a reasonable doubt

actual cause

- but for test

- substantial factor

proximate cause (cause, negligence elements)

if the defendant has breached standard of care, then the defendants for all of the foreseeable consequences that flow from the negligent acts

- foreseeability again

define res ipsa loquitur

("thing speaks for itself") - elements which permit you to infer from the accident itself and the surrounding circumstances that the defendant was negligent unless the defendant offers a satisfactory explanation otherwise

elements of res ipsa loquitur

1. control: defendant had control over the circumstances surrounding the event;

2. cause: event would not have occurred in the absence of negligence; and

3. no explanation: no other reasonable explanation for the event offered by the defendant

comparative negligence

- response to harshness of the contributory negligence doctrine

- jury is asked to divide fault between all parties. Defendants and Plaintiff

- think pie chart. We use 100% and divide up guilt/responsibility

3 rules of comparative negligence

1. decrease recovery by plaintiff's own negligence

2. no recovery if plaintiff's negligence exceeds that of defendant

3. does joint and several liability apply?

rule 1: always decrease total recovery by the Plaintiff's own negligence

- plaintiff's own negligence will be part of the comparative negligence analysis

3 approaches:

1. old - any contributory negligence on the part of the plaintiff bars any recovery

2. pure comparison (minority view) - assign percentages of fault and those percentages are determinative of how damages should be apportioned

3. modified comparison (majority view) - plaintiff cannot recover if they are more at fault than a defendant(s)

rule 2: plaintiff does not recover from a particular defendant if the plaintiff's fault exceeds that of a defendant

ex:

- plaintiff (20%)

- Defendant 1 (10%)

- Defendant 2 (70%)

rule 3: does the WI rule apply and what joint and several rule applies?

why is it important? plaintiff wants the deep pocket

Several - plaintiff must recover against each defendant for the full amount

Joint and Several - can recover against each defendant for the full amount

Modified (modern) Approach - plaintiff can recover jointly and several if defendant's liability exceeds a certain amount

what is the WI rule?

a defendant who is less than 51% liable is not jointly and severally liable with other defendants, but is only liable for its percentage of fault

what should law be?

predictable

flexible

knowable

reasonable

what does the judge decide?

*all lawsuits involve a judge

duty, proximate cause

- saying what law to apply, if there is a duty owed

- proximate cause is a legal analysis (similar to duty), reason to foreseeable consequence

what does the jury decide

*NOT all lawsuits involve a jury

breach, actual cause, injury

- jury's decide the fact, was the light red or green when you ran through it and hit another car

what is intellectual property (IP)?

a creation, idea or design we want to protect

pros and cons of giving IP legal protection

pros: lot of effort/ money into it so you want to protect it, want to promote creativity, nobody else can make it/ steal the idea

cons: leads to monopolies--> higher prices

how to learn IP?

1. how are IP rights created?

- state and federal law

2. how are IP rights violated?

- misappropriation and infringement

define trade secrets

Business secret (information) that gives companies economic advantages

elements of trade secrets

1. Independent economic value

2. Not generally known

3. Not really ascertainable

4. Effort to maintain secrecy

how are trade secrets violated?

1. improper acquisition

- bad conduct (espionage, theft, bribery, misrepresentation, breach of duty to maintain secrecy (or inducement))

2. improper disclosure

- obtain through improper means of another... or

- obtain through the mistake of another

what is not misappropriation in terms of trade secrets?

1. obtaining info from published materials/known

2. reverse engineering

3. public use/ disclosure by owner

4. independent invention

remedies for misappropriation

- injunctive relief (stopping the wrongful use of another's trade secret)

- recovery of damages

- theft of a trade secret is a state crime

- Economic Espionage Act of 1996 makes it a federal crime to steal another's trade secret

define trademark

distinctive symbol, word, name, device, letter, number, design, picture, or combination in any arrangement that a person adopts or uses to identify the goods they manufacture or sell, as well as to distinguish them from those manufactured or sold by others (marketing shortcut)

how are trademarks created

1. common law rights acquired through usage--> can't squat

2. registration under the Federal Trademark Act (the Lanham Act)

rules for trademarks

creation

- distinctive

OR

- secondary meaning

AND

- use

infringement

- likelihood of confusion

test of an enforceable trademark

fanciful, arbitrary, suggestive, and descriptive

how to avoid genericizing a mark

- never use as a noun or verb

- distinguish the mark - TM, capitalize, italicize, bold

- monitor third-party use

examples of loss of protection (TM)

cola (second half of Coca-Cola)

aspirin, thermos and windows (Microsoft claimed TM)

Lanham Act - Section 43(a)

any person... who uses in commerce any word, term, name, symbol, or device.. or false designation of origin which:

- is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin...

shall be liable in a civil action

trademark infringement

occurs when a person without authorization uses an identical or substantially indistinguishable mark that is likely to cause confusion, to cause mistake, or to deceive

Benefits of registration with PTO (Patent and Trademark Office)

1. constructive notice demand given (people are assumed to know the mark is yours)

2. use of r with a circle vs. TM

3. Customs Bureau protection against importation of goods bearing marks that infringe (knockoffs)

4. Prima facie ("presumed") evidence of right to use mark

5. Right to use the federal courts to enforce the mark

6. after 5 years of use, the mark becomes incontestable

7. 10-year term - can be renewed without limitation (but must use the mark in commerce)

Why might PTO refuse to register a trademark?

1. likely to confuse, cause a mistake to deceive as to the source of goods with respect to a mark already registered

2. merely descriptive (and no secondary meaning)

3. dilutes a famous mark (ex: blurring and tarnishment)

4. functionality doctrine (Maker's Mark vs. round beach towel)

5. deceptive

6. name, portrait or signature of a living person

7. opposition by members of the public

Trademark Dilution Revision Act

Famous Trademark Act

- any ads in the Super Bowl were most likely famous marks

- big companies try to prevent people from making similar marks that were confusing people/ diluting their brand

Tradenames

a name used to identify business, vocation or occupation (cannot be registered under the Lanham Act unless they qualify as a trademark) - may also be a trademark (ex: Ford, McDonald's, Ben & Jerry's)

copyright/ creation work must be...

1. original

2. fixed in a tangible form

3. must be owner

what are the exclusive rights of copyrights?

reproduce copies

prepare derivative works

distribute copies of the work

perform or display publicly the work

copyright infringement

copying.. but what level?

word for word

substantially similar

- similarity of ideas (themes)

- similarity of expression

factors in deciding if copyrighted work is fair use

allows use of copyrighted material

what is fair use? factors

1. purpose/ character of use

2. commercial or non-profit

3. nature of the original (music? art? writing?)

4. scope? how much? part? all?

5. effect on market?

uses that will likely constitute fair use

1. quotation for review or criticism

2. use in a parody or satire

3. brief quotation in news report

4. reproduction by teacher or student of a small part of work (use in an academic setting)

5. incidental reproduction of a work in a newsreel or broadcast

6. reproduction in a legislative proceeding

copyright registration benefits

registration with Register of Copyrights not required

- protection exists regardless of whether required

registration does have benefits

1. allows for certain remedies (ex: statutory damages, attorney fees)

2. prerequisite to filing an infringement action

3. prima facie evidence of ownership and validity

define patents

protected property right to make, use or sell an invention to the absolute exclusion of others for the period of the patent (basically a monopoly)

patent policy

to encourage invention and innovation by rewarding inventors for disclosing their invention by giving them a period of exclusivity from competition (20 years from the moment the application is submitted)

what qualifies to be patented?

any new and useful process, machine, or composition of matter, living material invented by person or any new and useful improvement thereof

- Note: patent is not available solely for an idea, but only for tangible expression thereof

patents/ statutory requirements

Utility

- must be useful (not enough to be merely exciting)

Be novel

must be different than was previously known or used, and must not have been:

--known or used by others in the US

--patented or described in any printed publication elsewhere in the world

--invented by another in the US who has abandoned or concealed the invention

--already described in a US patent application which results in the issuance of a patent

Be non-obvious

- trivial or "obvious modification of the existing start of art

- an invention is usually obvious if someone of ordinary skill in a relevant field could easily make the invention based on prior art

patents/ issuance

USPTO issues patents

- application which describes how the invention works and which describes the features that make the invention patentable

- application is confidential, however, confidentiality ends upon granting of the patent

- unlike copyright, no monopoly rights until USPTO grants patent

- rights granted by USPTO extends only to US, and person desiring a patent in another country must apply (Patent Cooperation Treaty deals with 151 countries)

- applicant that is rejected may apply for re-examination

patent/ infringement

infringement: making using or selling a patented invention without permission

remedies: injunctive relief, damages (reasonable loyalty), treble damages (3x the amount of damages) and attorney fees

problems in forming a contract

lack of consideration

statute of frauds

parol evidence rule

legality issues

desirable characteristics of contracts

they can be freely and easily made (good for society and economy) and effectively sanctioned if breached

3 elements of an offer

offer + acceptance = contract

1. communicated to the offeree;

2. manifest an intent to enter into a contract; and

3. be sufficiently definite and certain enough

quasi contract - not a type of contract at all

1. benefit conferred by one part to another

2. appreciation or knowledge of the benefits by person receiving benefit

3. acceptance or retention of benefit under the circumstance

• would it be unjust for recipient to retain benefit without paying (house fence example)

elements (in terms of contract law)

a. a benefit was conferred by one party to another

b. appreciation or knowledge of benefit by person receiving benefit

c. acceptance or retention of benefit under the circumstances would be unjust

the offer

a proposal to enter into a contract which proposal can be accepted to form a contract

an offer must...

- mainfest contractual intent

- communicated to the offeree

- definite and certain enough

to. gap fill under the common law - you must show that....

1. the parties intended to be bound to each other contractually

2. there is a reasonably certain basis for filling the gap

UCC general formation provisions (2-204)

1. a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract

2. an agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined

3. even though one or more terms are left open a contract for sale does not fail indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy

examples of specific gap-filling provisions under the UCC

2-305 (price)

2-308 (place for delivery)

2-309 (time)

2-310 (time for payment--> at delivery if not otherwise communicated)

reference points to give guidance in filling gaps

- course of dealing - historical dealings between the parties

- usage of trade - customs in the industry or business

- course of performance - how were earlier performance installments of a contract handled by the parties?

what does article 2 of the UCC involve?

the sale of goods

output and requirements contracts 2-306

no quantity specified in absolute terms in the contract - how much can the seller force the buyer to take (output)? how much can the buyer demand (requirements)?

acceptance - manifestation of assent

1. can be given only by the offeree

2. must be unequivocal (communication must be equivalent of "I accept")

3. must be unconditional (cannot be "I accept provided...)

4. acceptance must be a mirror image of the offer

acceptance - mirror image rule

acceptance must be the mirror image of the offer

if the acceptance is different than the offer, the acceptance is

1. a rejection of the offer; and

2. a counteroffer (implied rejection)

revocation

the person making the offer takes it off the table and the offer is terminated

rejection

the person to whom the offer is made effectively says "no" and the offer is terminated

counteroffer

(rejection) - the person to whom the offer is made makes a counteroffer and the parties reverse roles - a counteroffer terminates the original offer

fanciful

distinct level of a trademark where it is a made-up word and is entitled to protection on day one

ex: drug name SkyRizi

arbitrary

distinct level of a trademark where it is a real word that can be descriptive but doesn't have immediate context

ex: Apple has nothing to do with technology

suggestive

distinct level of a trademark where it is entitled to protection. Real word that puts an image in your mind

ex: jaguar cars are fast like the animal)

descriptive

distinct level of a trademark that is the weakest where it is not entitled to protection immediately. Must gain a secondary meaning for protection

ex: pink for pink insulation

secondary meaning of a trademark

this is what must be gained by a descriptive level trademark:

1. long and exclusive use for 5 years

2. extensive sales and promotion

3. consumer survey evidence

4. other convincing evidence

prima facie

upon first appearance

in order to have trademark protection...

1. registration is unnecessary

2. just needs to be inherently distinct

3. must be in use

blurring a trademark

use of mark causes the public to associate the original product with the name less

tarnishment of a trademark

using a trademark in an unwholesome manner

generic trademarks

are not protectable because they are words that simply describe goods

what are the sources of law?

1. constitutions

2. statues/codes

3. administrative rules/ regulations

4. the common law

5. uniform commercial code (UCC)

6. restatements

7. terms and conditions of a contract

what are statutes?

laws enacted by a legislature (ex: Title 7, equal pay act, age discrimination and employment)

what is stare decisis?

doctrine that once a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases having substantially the same facts, regardless of whether the parties and property are the same or not

what happens in an appeal?

if the case doesn't settle then there will be a winner and a loser. The loser may file an appeal. Parties have absolute right to file this first appeal to the intermediate appellate court.

what is the role of the appellate court?

to review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly

what are the 4 elements of a negligence claim?

duty

- is there a duty to be non-negligent?

- is so, what is the scope of that duty?

breach

- what is the standard of care?

- does the defendant's conduct fall below the standard of care?

cause

- actual cause

- proximate cause

injury/ damages

- was there an injury?

- amount of damages?

outcome =

facts + law

economic costs associated with jurisprudence

legal fees and expenses

cost of time associated with jurisprudence

the passage of time to get a resolution (the legal system moves at a snail's pace), and your investment in your own time participating in the process

negligence

part of the body of law we call tort law - the law of torts addresses the allocation of losses arising out of human activity - because it is inevitable that we will "bump" into each other - who should bear these inevitable losses?

tort law

including the law of negligence, determines who will bear the losses naturally arising out of human activity