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BLAW 301 > Exam 2 > Flashcards

Exam 2 Flashcards

1
Q

Real Property (def)

A

The earth’s crust and all things firmly attached to it

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2
Q

Personal Property (def)

A

Everything else…hamburgers, running shoes, stock in a corporation

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3
Q

Tangible Property (def)

A

Has a physical existence.

Hammers, cars, bracelets, soda cans, iphones

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4
Q

Intangible Property (def)

A

Has no physical existence. Value lies in the rights that go with the property. Rights under a patent or copyright. Stocks. Right to sue on a contract.

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5
Q

Public Property (def)

A

Owned by the government, or some unit of the government.

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6
Q

Private Property (def)

A

Owned by an individual, a group of individuals, a corporation or other business organization

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7
Q

How do you come to “own” personal property?

A
  1. Production: A person owns the property she makes unless she has agreed to do the work for another person (in which case, the other person owns it).
  2. Exchange: A person obtains ownership by buying the goods, or otherwise getting them through contract
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8
Q

Abandoned (def)

A

owner intentionally placed the property out of his possession with the intent to relinquish ownership of it.

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9
Q

Abandoned (rule)

A

Finder becomes the owner.

This means the finder has better rights to the property than anyone else in the world – including the original owner.

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10
Q

Lost property (def)

A

Owner did not intend to part with possession of the property

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11
Q

Lost property (rule)

A
  • Original owner has better rights than the finder;

- And the finder has better rights than anyone else (other than the original owner)

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12
Q

Mislaid property (def)

A

Owner intentionally placed property somewhere but then accidentally left it there, not intending to relinquish ownership.

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13
Q

Mislaid property (rule)

A
  • Finder has no rights in the property.
  • Person in possession of the real property on which the personal property was mislaid has better rights to it than anyone other than the original owner
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14
Q

Gift (def)

A

Voluntary transfer of property to the donee from the donor

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15
Q

Donee (def)

A

Person who receives the gift

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16
Q

Donor (def)

A

Person who gives the gift

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17
Q

3 Elements to transfer title via “gift”:

A
  1. Donor must intend to make the gift.
  2. Donor must make delivery of the gift.
  3. Donee must accept the gift
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18
Q

Testamentary gift (def)

A

A gift made through a will

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19
Q

Ways of Acquiring Property are…

A
  1. Production
  2. Exchange
  3. Possession of unowned property under appropriate circumstances
    - Abandoned
    - Lost
    - Mislaid
  4. Gift
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20
Q

Bailment (def)

A

One party holding property of someone else, for a while, but with a duty to return it to the owner. (either: “can I borrow your bike to ride the river trails tomorrow?” or: “hey, would you hold my backpack while I run into this Port-a-Potty.”)

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21
Q

Bailment: Duty of Care

A
  1. If the bailment is “for the benefit of the bailor” (for the benefit of the owner), then the standard of care for the bailee is relatively low
  2. If the bailment is “for the benefit of the bailee,” then the standard of care for the bailee is much higher
  3. Many bailments are for the mutual benefit of both parties (like a rental agreement). Bailee has duty to return the object, and to take “reasonable care” of it
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22
Q

How can you acquire real property?

A
  1. Buy it
  2. Inherit it (via a will or via estate laws if there was no will)
  3. Get it as a gift (only the deed has to be “delivered” for a gift of real property to be effective – do not have to actually be on the real property)
  4. Adverse possession
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23
Q

Adverse possession (def)

A

If someone is continuously trespassing on your land and you fail to put a stop to it – eventually that trespasser will own the land. Amount of time varies by state – 5 to 20 years

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24
Q

Adverse possession occurs when…

A
  • A person wrongfully (without permission of the owner) occupies land in an open and notorious manner;
  • In a way that is actual, exclusive, and continuous (can do this with a fence or constructing something on it or just stay there continuously)
  • Possession must be continuous for a prescribed period of time (10-20 years, depending on the state)
    • True owner must take steps within a statutory time limit to eject possessor from the land or forever lose the right to eject the possessor
    • Easier solution: Just give them permission to be there
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25
Q

To whom do fixtures belong?

A

the owner of the real property

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26
Q

A permanent fixture (def)

A

personal property that has become attached to or connected to real property in such a way that it ceases being personal property and becomes part of the real property

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27
Q

How do you know if something is a “fixture”?

A
  • Gut-check: The more closely the value of the thing is tied to the real property, the more likely it is a fixture.
    Factors: Court will consider:
    1. Attachment
    • If firmly attached to real property so it cannot be removed without damaging property, the item is likely to be a fixture
      1. Adaptation
    • When an item would be of little value except for use with real property, item likely to be a fixture
      1. Intent
    • Judged objectively – by what the circumstances indicate was intended (not by the person’s subjective intent)
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28
Q

Easement (def)

A

the right to make a certain use of another person’s property

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29
Q

Natural easement (aka Easement by Necessity)

A

someone must be allowed to use land he does not own out of necessity (e.g. there is no other way to get to the land that person does own

30
Q

Easement by Grant

A

written grant that says the property owner that says the other person has the right to use some part of the land in some way, either because of a gift of a sale

31
Q

Easement by Reservation

A

owner sells the land, but reserves some use of a part of it for himself)

32
Q

Easement by Prescription

A

someone conducts an open and continuous use of another person’s land over a long period of time and the owner fails to stop that use)

33
Q

Concurrent Ownership

A

Each person’s ownership is UNDIVIDED
- No one person owns a specific piece or portion of the property – instead all the concurrent owners own the whole thing together

34
Q

Joint tenants

A
  • Must own equal share
  • Can have right of survivorship
  • Have to use special words to create it
35
Q

Tenants in common

A
  • Can own different shares
  • Cannot have the right of survivorship
  • If there are no special words, court usually finds the owners are tenants in common
36
Q

Same for both Joint Tenants and Tenants in Common

A

Owners, or creditors of an owner, can force a division of the property through an “action to partition”

37
Q

2 other points about Real Property:

A
  1. Agreements dealing with real property generally must be written (unlike most other contracts).
  2. States have systems for recording deeds – it is important to follow those systems to be sure you are getting good title. Transfer of the title is what transfers possession of the land
38
Q

4 Basic Kinds of Intellectual Property Protection

A
  1. Patents – inventions, some processes
  2. Trade Secrets – know-how, customer lists, recipes…and sometimes inventions and processes
  3. Copyright– books, paintings, music, films, software code
  4. Trademarks – logos, brand names
39
Q

Patent (def)

A

an agreement between the inventor and the federal government that gives the inventor a monopoly for a limited period of time

40
Q

Patent (rules)

A
  1. The patent holder has the exclusive right to exclude others from the making, using, or selling of the invention for 20 years. (monopoly)
  2. To get the deal, the inventor MUST disclose to the patent office and the public, in detail, the invention
41
Q

Patent (3 standards)

A
  1. Useful
  2. Novel (new)
    - No piece of prior art has all the same elements as this new thing, and
    - It has not been described in any publication or put to public use more than a year before the patent application is filed
  3. Nonobvious
    - It is not anticipated (obvious) from prior inventions, to those with ordinary skill in that field
42
Q

Who is the “inventor” who gets the patent?

A
  • New US Rule (American Invents Act (AIA) – provisions effective March 2013): First to file
  • First person to file a patent gets the patent, even if he was not first to invent
    …so long as that person independently developed the patent
43
Q

What is not patentable?

A
  1. Abstract ideas – including mathematical and scientific concepts, are not patentable.
  2. Rule of nature: Laws of nature and natural phenomena are not patentable
44
Q

Trade secret (def)

A

any secret formula, pattern, process, program, device, method, technique, or database used in the owner’s business that offers competitive advantage

45
Q

Patent: (Pros and Cons)

A
  • Likely more up-front cost
  • Do not have to keep secret (in fact, can’t keep secret)
  • Will lose protection at the end of the patent term (usually 20 years)
46
Q

Trade Secret: (Pros and Cons)

A
  • Only cost is whatever it takes to keep it secret
  • Can keep the secret – don’t have to disclose
  • Can keep it forever if I always keep it secret
  • Will lose protection if anyone can reverse engineer it.
  • Under the first to file system now in place, if someone else patents it (outside that initial grace period after the invention), then I will be excluded from making it.
47
Q

Trade Secret (rules)

A

A firm must take reasonable measures to maintain secrecy
– Good start…NDAs (non-disclosure agreements – with employees, customers, potential business partners who will have access to the information)

48
Q

Misappropriation of a trade secret occurs when …

A

a person discloses OR uses the secret information after acquiring the secret by improper means

49
Q

Improper means: (def)

A
  • Theft, trespass, etc.; OR
  • Through another party who is known or should have been known to have obtained the secret by improper means; OR
  • By breaching a duty of confidentiality
50
Q

Reverse engineering

A

is not misappropriation of a trade secret.

– If you figure out how to do the same thing without unlawfully taking the trade secret…then I can’t do anything about that

51
Q

Remedies for Misappropriation of Trade Secrets:

A

Damages –
Amount of actual loss to the trade secret owner or
unjust enrichment to the trade secret misappropriator;
Sometimes punitive damages;
Sometimes injunction.

52
Q

What is a copyright?

A

Gives some exclusive rights to creators of original works of authorship. Copyright owner can exclude others from using and copying their work, subject to some limits.

53
Q

What does copyright law cover (what kinds of works may be protected)?

A

A wide range of creative material.

  • Books and articles
  • Plays, movies, and other dramatic works
  • Musical compositions
  • Works of art
  • Lectures
  • Sound recordings
  • Architectural plans
  • Computer code – (object code - only machine readable; source code – human readable) subject to copyright. Not as clear whether organization, structure, presentation on screen are copyrightable
54
Q

How do you get copyright coverage for your work?

A

Copyright comes into existence AUTOMATICALLY upon the creation and fixing of the work.
Creator can register with the US Copyright office, but doesn’t have to.
Usually will register if you think you may want to sue, though.
$35

55
Q

What about this: © ?

A

A form of notice.
It is permitted but not required for creation of copyright.
Federal law authorizes use of the © with the year of first publication and the name of the copyright owner to give notice.

56
Q

Why use ©?

A

Eliminates the “innocent infringement” defense

57
Q

How long does copyright last?

A

Works created in 1978 or later: Life of the creator plus 70 years.
Works for hire: 95 years from first use or 120 years from creation, whichever comes first

58
Q

Work-for-hire:

A

An employee creates a copyrightable work within the scope of her employment duties. Employer is the author and copyright holder

59
Q

Ownership Rights – what do you get by being the owner of the copyright?

A
  • Exclusive rights to reproduce the work, prepare derivative works (e.g. the movie version of the novel), and distribute copies for sale or otherwise.
  • Copyrights are transferable and licensable – you can sell (transfer) your copyright or give someone else a limited right to use (license) your work.
60
Q

Copyright Infringement: Normally requires establishing that—

A

(1) Defendant had access to the copyrighted work;
(2) Defendant engaged in enough copying (whether deliberate or subconscious) that the resemblance between the to be two versions does not seem coincidental; and
(3) There is a substantial similarity between the two works (more than just expressing the same themes, but it does not have to be copied verbatim to be considered infringement)

  • Merely crediting the work (citing the author) is not a defense to copyright infringement
61
Q

“Fair Use” Exception:

A

Ok under some circumstances to copy work for:

  • Criticism/comment, including parody
  • News reporting
  • Teaching, scholarship, research

Court considers how much of the work you are using, for what purpose, and what effect your use has on the market for the copyrighted work

62
Q

Trademark

A

Distinctive mark, motto, device, or emblem that a manufacturer or service provider stamps, prints, or affixes to products it produces or services it performs to distinguish products or services from those of competitors

63
Q

“Trademark” applicable to:

A
  • Trade name (e.g., McDonald’s, Nike)
  • Trade image (e.g., Ronald McDonald)
  • Trade logo (golden arches, swoosh)
  • Trade dress (orange & red of McDonald’s)
64
Q

How do you get a trademark?

A
  • Can use ™ without registering.
  • Must register to use ®
  • You do not have to register the trademark, but you will have much better protection if you do.
  • Apply at the USPTO, and they determine whether it is distinctive enough to qualify.
  • Not easily transferred, but may be licensed. [Why?]
  • – b/c it would be confusing to transfer trademarks
  • Can lose trademark protection, e.g. by abandonment
65
Q

Trademark Infringement:

A

Someone uses the mark without the owner’s consent, in connection with the sale of goods or services, such that consumers are likely to be confused about the source of the goods or services.

66
Q

Trademark Dilution:

A

If someone makes use of a famous mark without the owner’s consent, they face liability if their use is likely to cause dilution of the strength of the mark either through:
blurring - use of same mark by two very different companies may blur/dilute the mark in the minds of the public; or
tarnishing use of the mark in a way that makes the company look bad

67
Q

blurring

A

use of same mark by two very different companies may blur/dilute the mark in the minds of the public

68
Q

tarnishing

A

use of the mark in a way that makes the company look bad

69
Q

4 Basic Kinds of Intellectual Property Protection

A

Patents – inventions, processes
Trade Secrets – know-how, customer lists, recipes
Copyright– books, paintings, music, films, software code
Trademarks – logos, brand names

70
Q

bundle of rights

A
  • Liberty to use (use the property in any way you want)
  • Right to exclude (to determine who else can and cannot use the property)
  • Power to transfer (to sell or give the property to someone else)
  • Power to devise or bequeath (to leave it to someone in your will)
  • Immunity from damage (to not have your property damaged by others)
  • Immunity from expropriation (to prevent others from taking it from you against your will)
71
Q

bundle of rights limitations

A
  • Liberty to use…so long as your use of it doesn’t violate someone else’s rights.
  • Right to exclude…so long as you are not violating anti-discrimination laws in a business open to the public.
  • Power to transfer…except that laws regulate some contractual relationships (e.g. anti-trust laws; anti-discrimination rules in home sales)
  • Power to devise or bequeath…except that you must pay estate taxes and some states require that a surviving spouse gets some property
  • Immunity from damage …except that some things others do may impact the value of your property and yet be permitted
  • Immunity from expropriation…except that the government can take property in some instances by paying just compensation (eminent domain), or may pass laws that affect value even without just compensation in some instances (zoning regulations)

BLAW 301 (4 decks)

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