Session 5 Flashcards
Law of Property
1
Q
Public Property
A
Owned by the government for the benefit of all.
2
Q
Private Property
A
Owned by individuals, businesses, and organizations to the exclusion of others.
3
Q
Real Property
A
Immovable things including, lands, buildings and related fixtures.
4
Q
Personal Property
A
Moveable, tangible things and intangible property.
5
Q
Tangible Property
A
Property which are physical things.
6
Q
Intangible Property
A
Things whose value do not arise out of their physical characteristics.
7
Q
Chattel
A
Movable, tangible property.
8
Q
Choses in Action
A
Intangible personal property.
9
Q
Sale of Goods
A
Is a transaction based on a contract and thus common law contract law applies unless modified by legislation.
10
Q
What must a transaction under sale of goods include?
A
An exchange of money for goods.
11
Q
True or false: Sale of goods applies to both moveable and immoveable goods.
A
False: Sale of goods only applies to moveable goods.
12
Q
What is the monetary threshhold for form requirements in SK?
A
$50 (However this rule has many exceptions)
13
Q
Transfer of Title
A
The moment where the title of goods changes from one party to another.
14
Q
True or false: Parties to the contract may determine when title passes.
A
True
15
Q
When does the title pass for goods in a deliverable state?
A
When the sales contract is made.
- Timing of payment is irrelevant
- Timing of delivery is irrelevant
- “High risk” scenario if buyer does not take posession immediately
16
Q
When does the title pass for goods not in a deliverable state?
A
Once goods are in a deliverable state and buyer is notified.
- Goods need to be ready for delivery, but the timing of the planed delivery is irrelevant
- Timing of payment irrelevant
- “High risk for buyer if goods remain in seller’s possession but are ready for delivery
17
Q
When does title pass for unconditional sale of specific goods in a deliverable state which still need to be weighted, measured, or something else to ascertain the price.
A
Title passes once goods are weighed, measured, or priced and the buyer is notified.
- Timing of planned delivery is irrelevant
- Timing of payment is irrelevant
- “High risk” for buyer if goods remain in seller’s posession but are ready for delivery
18
Q
When does title pass for goods on approval with a return privilege?
A
Once goods are delivered to buyer and buyer indicates approval of the goods.
- If buyer remains silent and retains the goods, title passes after a reasonable period of time (or the time outlined)
19
Q
When does title pass for goods on unconditional future sale?
A
Once:
a. The goods are produced
b. the goods are in a deliverable state
c. unconditionally appropriated to the contract
20
Q
When does title pass with a carrier involved?
A
The minute the seller parts with the goods.
21
Q
Condition
A
Essential term of the contract, if broken the innocent party is free from any further obligations and may seek damages.
Breach of conditions ends contract.
22
Q
Warranty
A
Less important term of a contract, if broken the innocent party is not free from its obligations under the contract, innocent party can seek damages.
Breach of warranty does not end contract.
23
Q
Title of Seller
A
Implied condition that seller has title to sell or will have title at the time of sale.
24
Q
Why is seller implied to have the title?
A
So that the title can be passed to the buyer.
25
Sales by Sample
Buyer agrees to purchase goods based on a sample the seller provides. The buyer assumes that the bulk of the goods will be the same quality as the sample.
26
Sale by Description
The buyer only has a description of the goods and does not see them in person.
27
Quality or Fitness for Specific Purpose
No implied condition or warranty on quality of fitness for any purpose unless:
1. Buyer makes pupose known to seller, and relies on their judgement (Best Buy).
2. For goods bought by description from a seller who deals in such goods.
3. Implied warranty or condition as to quality or fitness for a particular pupose may be annexed by the usage of trade.
28
True or false: The seller is obliged to deliver goods at the right time, place and in the right quantity.
True
29
True or false: The buyer has more obligations than the seller.
False: The seller has more obligations than the buyer.
30
True or false: Quality of goods is a warranty.
False: Quality of goods is a condition.
31
What are some obligations that are typical for the buyer?
- Examination of goods sent for approval
- Comparison of good with the sample, if transaction was sale by sample
- Payment of purchase price as contractually agreed
32
True or false: There is an exclusion of implied warranties and conditions possible in consumer transactions under most provincial consumer protection legislation.
False: There is no exclusion of implied warranties and conditions possible in consumer transactions under most provincial consumer protection legislation.
33
True or false: If buyer does not pay on time, seller can request damages.
True
34
What are remedies for the buyer?
- Recission
- Damages
- Specific Performance
35
Recission
The revocation of a contract or agreement.
36
Restitution
To restore or return a party to an original position.
37
When/how will the buyer recieve recission?
- If seller is in breach of a condition
- Buyer can withhold payment
- Buyer can demand refund
- If buyer has to buy goods elsewhere for a hogher price they may receive damages for difference in price
38
When/how will the buyer receive damages?
- If seller is in breach of a warranty
- Buyer cannot reject the goods
- Buyer may reduce price
- Buyer has duty to mitigate damages
39
Rescission is breach of a...
Condition
40
Damages is a breach of a...
Warranty
41
Specific Performance
- Rare in practice
- Courts are reluctant to grant specific performance
- Mainly applies in cases of unique goods not found elsewhere
- This requires seller to perform the contract
- Specific performance are court ordered
42
Can a buyer directly request specific performance from seller?
No specific performance must be court ordered.
43
What are remedies for the seller?
- Lien
- Action for Price and Damages
- Stoppage in Transit
44
Lien
The right to retain goods until payment is made.
45
When/how will the seller receive lien?
- A security interest by the seller in goods allowing seller to retain posession
- Applies if seller is unpaid but still in possession of goods and certain additional criteria are met
46
When/how will the seller receive action for price and damages?
- If seller is no longer in possession of goods and remains unpaid they can sue for purchase price
- If the buyer refuses the goods the seller may sue for purchase price
- Seller may resell to a 3rd party and claim damages for difference in lost profit.
47
Stoppage in Transit
- Gives seller the right to stop goods in transit (and regain possession of goods) if seller is unpaid and buyer becomes insolvent.
- Challenge of timing of seller's knowledge of buyer's insolvency
- Seller has additional remedies available under Bankruptcy and Insolvency Act if buyer became insolvent and goods were stopped in transit.
48
True or false: Stoppage in transit involves a 3rd party carrier.
True
49
What is the value of an IP?
The owner's right from preventing others copying it.
50
True or false: Most businesses have no IP worth protecting.
False: Almost all businesses have some type of IP worth being protected.
51
True or false: Most IP law is under federal jurisdiction resulting in uniformity across Canada.
True
52
True or false: IP cannot be licensed, sold, or transferred.
False: IP can be liscensed, sold, or transferred.
53
Sole Ownership
Tangible propert uses sole ownership, if I want to be the sole owner of my car nobody else can be the sole owner of my car.
54
Does IP use sole ownership?
No, IP does not have sole ownership.
55
In what was can others be permitted to use IP?
- License
- Assignment
56
IP License
Grants party the right of use.
57
IP Assignment
Transfers ownership in IP.
58
Types of IP
- Patent
- Copyright
- Trademark
- Industrial Design
- Trade Secret
59
Patent
Exclusive right for inventor to make, sell, and use the invention.
60
Copyright
Exclusive right to use, reproduce, sell, or perform original aristic work.
61
Trademark
Unique mark/identifier of brand to distinguish goods and services of one company from those of another.
62
Industrial Design
Government-granted exclusive right to make and sell manufactured product with unique shapes or visual elements.
63
Trade Secrets
Confidential business process, method, data, procedure, or recipe that has value in not being disclosed.
64
How long do patents last, and are they renewable?
20 years, not renewable
65
How long does copyright last, and is it renewable?
Copyright lasts until 70 years after the author's death, not renewable
66
How long does trademark last, and is it renewable?
10 years, it is renewable
67
How long does industrial design last, and is it renewable?
10 years, not renewable
68
How are trade secrets regulated?
Likely through a non disclosure agreement.
69
What must an invention be in order to be eligible for a patent?
1. Something new
2. Something useful
3. Something innovative
70
Who grants patents in Canada?
The CIPO (the Canadian Intellectual Property Office)
71
True or false: Patents are covered under common law.
False: Patents are not covered under common law, but under the Patent Law.
72
True or false: If you make your invention public before you file for patent, it is not patentable.
True
73
What happens once a patent expires?
It enters the public domain.
74
What is the exchange for being granted a patent (may deter from getting a patent)?
The owner must disclose the invention to the public in its entirety.
75
Select all of the following which are patentable:
- A machine
- A process
- Disembodies ideas
- Major improvements to existing item or process
- Forms of life
- A product
- Methods of medical treatment
- A composition
- Scientific principles
- Printed matter
- Abstract theories
- Forms of energy
- A machine
- A process
- Major improvements to existing item or process
- A product
- A composition
76
True or false: Pharmaceutical drugs can be patented.
True
Patented drugs, after the 20 years, will usually be sold in the generic form for a fraction of the price.
77
What are the steps of the patent procedure?
1. Search
2. Application
3. Claim statement
4. Examination
5. Issuance
78
True or false: You do not need to register for a patent.
False: You cannot obtain a patent without registering.
79
True of false: Once patent is granted, the holder should meet public demand for the invention, if not a compulsory license may be ordered.
True
80
To what does copyright apply?
Copyright has a wide application to all written and artistice work, including translations of written works, and conversions to another medium.
81
Must copyright be registered?
Copyright can be registered, but it doesn't have to be.
82
Who is assumed to be the owner of the copyrighted material?
The person who registers the copyright.
83
Is registration required for copyright protection?
No, only evidence of ownership is required.
84
What are requirements for copyright?
- Originality
- Fixation
85
What are some examples of what copyright protects?
- Books
- Journals
- Magazines
- Computer programs
- Music
- Movies
- Photos
- Maps
- Drawings
- Paintings
86
Can something performed, such as choreography, be copyrighted?
Yes, choreography can be copyrighted, this is an exemption for the need of perpetuity.
87
Fair Dealing
Allowing copying of copyrighted materials for purposes of research, private study, review or report on the work.
88
What must be done in order to properly utilize a copyrighted material under fair dealing?
The sources needs to be clearly named and the copy may not be all or a substantial part or the work.
(General rule: 1 Chapter or 10% of the work).
89
What types of institutions have exemption from fair dealing?
- Educational Institutions
- Museums
- Libraries
- Archives
90
True or false: Private performance of certain work does not require a license.
True
91
Copyright Infringement
The unlawful interference with someone elses copyright.
92
True or false: The guilty party must receive financial gain from the material in order for this to be classified as copyright infringement.
False: Copyright infringement does not require financial gain, simply use.
93
What are typical remedies for copyright infringements?
- Injunctions
- Damages
- Some might be subject to criminal proceedings.
94
Moral Rights
The integrety and image of the author.
95
True of false: Moral rights are the same as the copyright.
False: Moral rights are distinct from the copyright and cannot be assigned by the author to someone else.
96
What do moral rights include?
- Right to be identified as the author
- Right to prevent changes to the work
- Right to prevent changes to the work which might dishonour the author's reputation.
97
What does trademark protect?
Words, symbols and pictures associated with business names, brands and products.
98
True or false: You can have an unregistered trademark.
True
99
What is the main purpose of a trademark?
To facilitate commercial activity.
100
With whom is the ownership of the trademark associated?
Not the person who created it, but its usage.
101
True or false: An uregistered trademark is legally protected as long as it is in use.
True
102
List 3 types of trademarks.
1. Service mark
2. Certification mark
3. Distinctive guise
4. Trade name
5. Sound mark
6. Non-traditional mark
103
Trademark registration requirements:
- Distinctive
- Separate from product itself
- Must be in use
- No confusion with existing trademarks
- No association with someone living or dead for less then 30 years
104
With whom does the enforcement of trademark fall?
The owner
105
What happens if a trademark term becomes synonomous with an action (googling).
The trademark is gone
106
What does industrial design protect?
Protects the visual appearance of a product.
107
What is classified as a design component.
A non-functional component.
If it was a new functiontional component it should be registered as a patent.
108
Most common remedies for industrial design infringements.
- Injunctions
- Damages
109
What is classified as trade secrets?
Technical information such as:
- Methods
- Processes
- Recipes
Which provide an economic value.
110
Do trade secrets have legislation addressing them?
No, they addessed by any specific legislation, but are protected in common law.
111
How are trade secrets are often protected?
Contracts such as NDAs.
112
When is information confidential?
- Not publicly available
- Information has an economic value for not being known
- Efforts are in place to keep information secret
113
True or false: If a trade secret does get out it is very hard to stop it spreading, and damages will likely not cover harm done.
True
