Overview of Tort, Criminal, and IP Law Concepts

Tort

Financial injury

Intentional Torts

Intent to 'Act' + Damages

Intent to 'Act'

Not intent to harm, includes transferred intent

Assault

Intentional act causing fear of imminent harm

Battery

Intentional harmful/offensive contact

False Imprisonment

Physical barrier + restraint + immediate threat (Shoplifter rule)

IIED (Intentional Infliction of Emotional Distress)

Extreme/outside social decency

Defamation

Untrue statement of fact + publication + damage to reputation

Libel

Written, general damages (McKee v. Laurion)

Slander

Spoken, requires special damages

Public Figure Exception

Requires actual malice

Fraud

Misrepresentation + intent + reliance + damages + causal connection

Wrongful Interference

Contract & Business Opportunities

Negligence

Failure to use reasonable care to prevent foreseeable harm

Elements of Negligence

Duty, Breach, Cause in fact, Proximate cause, Damages

Duty of Care

(Weirum v. RKO, 1975)

Special Duty

Business owners must remove hidden dangers

Heightened Duties

Doctors, Lawyers, Accountants, Engineers

Lessened Duties

Assumption of Risk (Taylor v. Baseball Club of Seattle, 2006)

Burden of proof failure

A defense in criminal cases

Self-defense

Must feel threatened

Castle Doctrine

Protects home, curtilage, workplace

Stand Your Ground

Applies anywhere

M'Naghten Rule

Right/wrong test for insanity defenses

Irresistible Impulse Test

Test for insanity defenses

Substantial Capacity

No understanding or control

Necessity

A defense in criminal cases

Duress

Cannot trade life for death

Statute of Limitations

Time limit for bringing a lawsuit

Mistake of Fact

Does not equal Mistake of Law

Entrapment

Gov't induces crime

5th & 6th Amendment

Criminal procedural safeguards

8th Amendment

No excessive bail/cruel punishment

Miranda v. AZ (1966)

Landmark case regarding rights of the accused

Exclusionary Rule

Tainted Fruit principle

4th Amendment

Search & Seizure protections

Probable Cause

Required for obtaining a warrant

Exceptions to Warrant Requirement

Consent, Hot Pursuit, Incident to Arrest, Plain View, Automobile Exception, Stop & Frisk, Domestic Terrorism

Trademark

Word/symbol that identifies a brand (Coca-Cola v. Koke of America)

Validity of Trademark

Valid on use + lasts as long as used

Distinctiveness Categories

Fanciful, Arbitrary, Suggestive, Descriptive

Fanciful

Completely new term

Arbitrary

Common word, unrelated meaning

Suggestive

Hints at product

Descriptive

Secondary meaning (IBM, Holiday Inn)

TM Infringement (Lanham Act)

Unauthorized use + likelihood of confusion (Brothers Records v. Jardine)

TM Remedies

Injunction, damages, profits, destruction

TM Dilution (Revision Act)

Famous TM + dilution of distinctiveness (Starbucks v. Lundberg)

TM Licensing & Counterfeiting

$2M fine per incident, 10 years prison

Service Mark

Super Cuts

Trade Dress

Packaging, store layout, product shape

Patent

Exclusive rights for 20 years

Patent Requirements

Must be useful, novel, and non-obvious (Barnes & Noble v. Amazon, 2001)

Patent Remedies

Injunction, damages, destruction

Trade Secret Protections

Compartmentalization, NDA

Copyright

Protects artistic work (literature, films, music, architecture)

Copyright Duration

Life + 70 years (Corp: 95 years)

Copyright Infringement

Unauthorized reproduction (Inhale, Inc. v. Starbuzz Tobacco, MGM v. Grokster)

Fair Use Test

1. Purpose & character 2. Nature of work 3. Amount copied 4. Market effect

TRIPS

International IP Agreement for Patent

Madrid Protocol

International IP Agreement for TM

ACTA

International IP Agreement for Anti-Counterfeiting

Berne Convention

International IP Agreement for Copyright (Golon v. Holder)

Sole Proprietorship

Full personal liability (Quality Truck & Car Leasing, Inc. v. Sark)

Franchise

Integrated business system (supply chain, marketing, goodwill)

Franchise Contract

Fees, supplier rules, quality control (Holiday Inn v. Hotel Associates)

Partnership

No written agreement required, profit/loss sharing, pass-through taxation

Joint & Several Liability

Partners share responsibility

Partnership Duties

Loyalty: Disclose profit/loss, no competing; Care: Clawback rules

Limited Partnerships (LP, LLP, LLC)

Limited Partner: No management rights, limited liability

LLC

Choice of taxation (entity/pass-through), member/manager managed

Closely Held Corps

S-Corps: ≤100 shareholders, U.S. residents; C-Corps: Unlimited shareholders, no residency requirement

Corporation Formation

Incorporator + Articles + Fees + Franchise Tax

Management of Corporations

Shareholders: Vote, sell shares, inspect records; Board of Directors: Set policy, hire officers; Officers: Handle day-to-day operations

Corporate Pros/Cons

Pros: Limited liability, capital raising, corporate personhood; Cons: Double taxation (except S-Corp), compliance formalities

Corporate Veil Piercing

(Alter Ego Doctrine): (Dog House Investments v. Teal Properties, Inc.)

Public Corps

More regulations/disclosures

Director & Officer Duties

Duty of Care: Major decisions must be informed (Smith v. Van Gorkom); Duty of Loyalty: No self-dealing (Bayer v. Beran); Enforcement: Derivative Shareholder Lawsuit