Module #5 - Property Law Flashcards
What is property?
a relationship between people with respect to things
aka a certain right towards things
Property Laws and what they determine
who is wealthy/who has power
property=claim to have a certain right towards things
House example of a owners rights
bank, city, neighbours
bank can have the right to someones house (mortgage), city can prevent someone from running a restaurant in their house, neighbours can discuss lawn issues with me
Real property
land and buildings and anything attached to them
FIXED AND NOT MOVEABLE
Personal Property
Evertything that is not real property - tangible (laptop, jacket) and intangible (patents, trademarks)
Fixtures
goods that are attached to real property
example: shingles on a roof
How to determine what is a fixture
degree of permanence and degree of damage if removed
Two big property questions
who has rights to the property? and what rights do they have?
Possessory interests - fee simple
ownership of land and buildings
Possessory interests - life estate
a perosn has right to possession during their lifetime, but not after they die
Non-Possessory Interests: Easements
basically a service company being allowed access to your property but not to live in it
Non-Possessory Interests: Rights of Way
owner grants rights for another to pass over their land
entering and exiting a property
Non-Possessory Interests: Licenses
a right to profit from land
Non-Possessory Interests: Restrictive Convenants
clauses that prevent, prohibit, restrict, or limit the actions of a person named in a contract.
think avoiding the unusual or unattractive
Non-Possessory Interests: Mortgages
give the bank the right to enforce the mortgage
interest applied, you give bank the mortgage
Aspects of Joint Tenancy (joint ownership)
think equality
-right of survivorship (one person dying=rights transferred)
-always equal
Aspects of Tenancy in Common (co-ownership)
no right of survivorship and potential unequal interests
Aspects of a Condominium
commbo of fee simple (apartment/unit) and co-ownership (common areas)
is it absolute?
Finders-Keepers
a person who finds personal property has a right to claim it against anyone except the true owner
not absolute
Two types of Private Property
publicly accesible vs not publicily accessible
Bailment
a bailment is when one person (the bailee) is in the possession of goods that belong to another person (the bailor)
Bailement Standard of care depends on what
the value and nature of the goods
who the bailment benefits
the terms of a contract
Intellectual Property
protects creations of the mind…but not ideas
What type of law do IP Laws fall under?
federal rights
Trademarks
words, logos or symbols that distinguish goods or services
Unregistered Trademark
enforceable mark created by a business or individual to signify or distinguish a product or service. It is legally different from a registered trademark granted by statute.
Color vs Sound - trademark or not
color - cannot be trademarked, sound can be
3 things (think terms of trademark)
Registered Trademarks Provide
- rights of use across Canada
- protection against a challenge based on prior use after 5 years
- 15 years of protection (renewable)
Trademark infringement: passing off
- goodwill or reputation in the mark
- misrepresentation to the public
- damages
Remedies for trademark infringement
damages
injunctions (stopping the offensive activity ordered by court)
accounting of profits (turn over money made unlawfully using a trademark)
delivering up (making sure knockoffs/products are all delivered to me so that they can’t sell things anymore)
Trademark Infringement: Trademark Dilution
→ using a mark in a non-confusing manner that tarnishes another mark or diminishes its value
→ intentional tort
→trademark used not in a way that is not competitive
→ using someone else’s logo means you have to emphasize differences
Copyright
protects against unauthorized copying
Copyright Arises Automatically - how long does it last?
lasts for life of the author + 50 years
Copyright Criteria
original (skill and judgment)
fixed medium (storage)
connected to Canada
copyrights can be registered but then usually aren’t
performances can be connected to copyright
Fair Dealing
an exception to copyright protection / allows you to do something that otherwise would not be allowed under copyright
Examples of fair dealing
review - movie reviews
criticism
news reporting
private study
parody or satire
Moral Rights
rights of the author or artist to be associated with the work and not to have the work disparaged or humiliated
Patents
provide exclusive rights to “practice” an invention
Patent Criteria
an invention must be new (within one year), useful (provide set of drawings, how the invention will be used exclusively) and not obvious
Remedies for Patent Infringement
- damages
- injunctions
- accounting of profits
- delivering up
Industrial Designs
protect the visual appearance of a product (shape/pattern)
Industrial Design Criteria
protect against manufacture, sale, rent or importation
must be registered for protection
must be registered within 1 year of initial use
last for 10 years
more than 10 year protection - would have to try trademarking
Does industrial design extend to functional components?
No, only design or appeareance
