Module 5: Contracts, Intellectual Property, Employment, Liability, Regulation

Four requirements of a valid contract:

1. legal subject matter

2. capacity of the parties to enter into contracts

3. exchange of consideration or something of agreed value between them

4. mutual assent between the parties

________ ensures that those who enter into agreements understand the nature and effect of their agreements. (Hint: "Infants are Incompetent when they are Intoxicated")

Capacity

True or False: Consideration can be anything the parties decide it is.

True

In order to be sufficient to create a contract, the offer must contain 3 things

(1) definiteness of terms, (2) intent,

and (3) communication

the offeree's acceptance of an offer must be unequivocal and be amirror image of the offer. If it is not, and any terms are changed by the offeree, it is considered to be a counteroffer which terminates the offer. Acceptance must be by the intended offeree or the offeree's agent or no contract is created.

mirror image rule

True or False: An offeror can make the terms of acceptance whatever he or she wants them to be and the offeror has complete control over the offer and how it is to be accepted.

True

two sets of laws that govern contracts:

the common law or Restatement of Contracts, and the Uniform Commercial Code (UCC).

True or False: The majority of contracts are contracts implied in fact --> when the parties enter into the agreement by their actions rather than because they have actually discussed the matter.

True

three types of federally protected intellectual property:

copyrights, patents, and trademarks.

To _________ upon a copyright means that the exclusive rights of the copyright owner have been violated. This can be accomplished by reproducing the copyrighted material; using the copyrighted material in a derivative work, such as a collection, without permission; or distributing, performing, or displaying copyrighted work.

infringe

True or False: A design patent is available for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." These are the most common types of patents.

False --> utility patent

An invention must meet three criteria to qualify for patent protection:

novelty, utility, and non-obviousness.

True or False: In order to protect a right to a trademark, efforts must be made to prevent the trademark from falling into general use as a generic term for a product or the business can lose the right to bring suit for trademark infringement.

True

Trade secret protection in the United States is a matter of state law and contains three requirements:

1. Limited availability of the secret to those outside the circle of those who need to know,

2. Economic value, and

3. Reasonable effort to keep the secret.

True or False: a trade secret does not need to possess concreteness or tangible form.

False, a trade secret must possess concreteness or tangible form.

A trade secret can be misappropriated three ways:

the secret can be acquired by improper means; disclosed after it was acquired improperly; or disclosed after it was acquired properly.

_______ was the first significant employment discrimination law enacted in this country. This federal law prohibits discrimination in any way in employment, including hiring, firing, promotion, compensation, benefits, training, discipline and other workplace decisions.

Title VII

Those who feel they have been discriminated against in employment must be able to prove it in one of two ways:

disparate treatment or disparate impact

used when an employee alleges treatment different from others similarly situated.

disparate treatment

is used when a seemingly neutral employment policy adversely affects an entire group of employees protected by the law.

Disparate impact

an employer refusing to hire or firing those of a particular nationality, such as Asians or Iranians; having policies not permitting those with a native language other than English to speak their native language in the workplace even when it does not interfere with their jobs; not permitting those with accents to hold certain jobs

National Origin Discrimination under Title VII

involves the employee directly or indirectly being threatened with not receiving workplace benefits or entitlements such as hire, promotions, raises, training, and so on, unless the employee engages in sexual activity with the harasser.

Quid pro quo sexual harassment

• Physical contact

• Sexual jokes

• Negative or stereotyped gender-based jokes

• Teasing

• Gestures

• Display of nude or sexually explicit photos, calendars, or the like in the workplace

• Repeated requests for dates or sexual activity

Hostile environment sexual harassment

Employers can also use the defense of _________ to defend against discrimination claims.

business necessity

A _______ is discriminatory on its face in that the job requirements state the BFOQ and applicants not meeting the qualifications need not apply.

Bona Fide Occupational qualification

include disparagement, interference with contractual or business relations, palming off, theft of trade secrets, and infringement of trademarks, trade names, patents, and copyrights.

business-related torts

also known as injurious falsehood, is intentionally making false statements about the quality or ownership of someone's goods.

disparagement

responsibility imposed on tortfeasors for engaging in activity deemed by statute to be so dangerous that the tortfeasors must take responsibility for all harm that arises therefrom, even if the tortfeasor was as careful as possible.

strict liability

duty to perform reasonable care, breach of duty, proximate cause, and injury caused by breach of duty is required for charge of

negligence

the name given to a group of several different legal bases including negligence, breach of warranty, and strict liability, for imposing liability on product makers and distributors for harm caused to people and property by defective, unreasonably dangerous products.

Product liability

The general law governing how federal agencies must conduct business is set forth in the _________

Administrative Procedures Act (APA)

__________ are laws passed by Congress delegating some of the legislature's authority to an entity created by the statute.

Enabling statutes

a set of suggested laws concerning commerce with the intent to provide uniformity across states in order to simplify business activity

UCC, universal commercial code

a patent that offers protection for the way a product looks

design patent

in tort law, employers will often be held liable for the actions of a negligent employee. Since employers usually have more money than the employee to pay for negligence, they would be in a better position to pay the victims.

deep pockets theory

a problem with the product's design that makes the product inherently dangerous or useless, even if it is manufactured perfectly with the best quality materials

design defect

relates to a duty the manufacturer has to package products in an appropriate and safe manner for the consumer

failure to adequately package

a party will be held liable for injuries caused to another, where the party had the opportunity to warn of any dangers of the product but failed to do so

failure to adequately worn

misrepresenting someone else's goods or services as one's own in business

palming off

a legal doctrine which states that an employer is responsible for the actions of employees performed within the course of their employment

respondeat superior

a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the wrongful act

tort

a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship (e.g. the employer-employee relationship) to the person who did act negligently

vicarious liability

a judge who both presides and issues judgment over the claims and disputes involving administrative laws and agencies

administrative law judge

a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's rights

due process of law

the official daily publication for rules, proposed rules, and notices of federal agencies and organizations, as well as executive orders and other presidential documents

federal register

The nature of employment law is that the relationship between the employer and the employee is an _______ legal relationship.

"at will"

contracts that are incapable of performance within one year of the contract being made, contracts involving real estate, and contracts involving the sale of goods of $500 or more.

types of contracts required to be in writing

refers to the requirement that certain kinds of contracts be memorialized in a writing, signed by the party to be charged, with sufficient content to evidence the contract.

statute of frauds

Why would someone choose to incur the time and cost of obtaining a patent for invention?

A. to have the right to make the invention public

B. to have the right to sell the invention to the public

C. to have the exclusive rights in the invention for 90 years D. to have the right to exploit the invention indefinitely without any competition

E. to have the exclusive rights in the invention for 20 years

E. to have the exclusive rights in the invention for 20 years

True or False: Trademarks need to be registered in order to be enforced

False: Registration allows for certain benefits, such as presumption of ownership and providing a basis for foreign trademark application, but trademark owners can still bring a court case without registering their trademark with the United States Patent and Trademark Office

The favorability of registering a trademark generally makes it highly preferable to have it registered with the USPTO.

Which law passed by Congress prohibits discrimination based on race, color, religion, gender, or national origin in any term or condition of employment?

A. Equal Pay Act

B. Title VII of the Civil Rights Act

C. Age Discrimination in Employment Act

D. ADA

E. Quid Pro Quo

F. None of the above is the single best answer

B. Title VII

Which of the following is NOT a suggestion offered to assist a supervisor in preventing sexual harassment in the workplace?

A. take appropriate disciplinary action when an act of sexual harassment occurs

B. inform employees of their right to raise sexual harassment claims

C. express strong disapproval

D. give employees information about the procedures of filing suits against sexual harassment offenders

E. train employees in what constitutes sexual harassment

F. None of the above is the single best answer.

C. Express strong disapproval

True or False: The agencies created by congress have rule making ability, and those rules are enforced by law

True: When congress passes an act or law, it enables the government to create an agency to enforce that act or law

A liability without the necessity of proving fault is a

strict liability

disparagement; intentional interference with contractual relations; patent, trademark and copyright infringement; theft of trade secrets; and palming off.

intentional torts against a business

when the offeree rejects the offer, when a counter offer is made, when the offer is withdrawn

circumstances in which an original offer will be terminated

True or false: trade secrets, trademarks, copyright, and patents are protected by intellectual property legislation

False: Intellectual property rights are valuable to a business only if they can be legally enforced. To protect trade secrets, a company should require a contractual obligation, commonly referred to as a non-disclosure agreement, from an employee to not misappropriate trade secrets.

stipulates that both an employer and an employee may terminate the employment relationship at any time and for any reason, so long as the termination does not violate a statutory law or an employment contract

at-will employment

True or False: If a tort, or a civil wrong, is committed "within the scope of employment" by an employee, both the employee and the employer are liable to the aggrieved party.

True

intentional torts, negligence, and strict liability torts.

Types of torts an employer can be held liable for