Test #3 Flashcards
What is the main test for trademark infringement?
The “likelihood of confusion” test, often assessed using the Polaroid test
Who was Sherry Hunt?
Sherry Hunt was the vice president and chief underwriter at CitiMortgage who uncovered significant mortgage defects and fraud at Citibank.
What are the three main goals of criminal law?
Deterrence, removal of dangerous individuals from society, and rehabilitation
What is “delegated underwriting,” and how did it lead to issues at CitiMortgage?
Delegated underwriting allowed correspondent lenders to approve loans with minimal Citi oversight, leading to a high volume of defective loans being purchased
What does UTSA stand for?
Uniform Trade Secrets Act
What does “actus reus” refer to in criminal law?
The physical act or omission that constitutes part of a criminal offense
What are the four exceptions to the exclusionary rule?
Independent source, inevitable discovery, intervening act of free will, and attenuation
What is the Anti-cybersquatting Consumer Protection Act (ACPA)?
A law preventing individuals from registering domain names of well-known brands with bad faith intent to profit.
When a trademark, due to its popularity or significance, has become the generic name for a general class of product or service, usually against the intentions of the trademark’s holder.
Can lose IP rights
Genocide
What is Mens Rea in criminal law?
It refers to the “guilty mind,” indicating the defendant’s intention or knowledge of wrongdoing, which is a component of criminal liability.
What role did Richard Bowen play in the CitiMortgage case?
Richard Bowen was the business chief underwriter who identified severe defects in Citi’s mortgage processes and reported them to upper management, including Robert Rubin
Information that provides a business advantage, kept confidential through various protections to maintain secrecy.
trade secret
What was the defect rate in CitiMortgage loans, according to Hunt and Bowen?
The defect rate in CitiMortgage loans ranged between 60% and 80%, far above the industry standard of 5%
What is the purpose of trademark registration with the USPTO?
To secure nationwide protection for a mark, making it easier to enforce exclusive rights
What are the key components of intellectual property law?
Protections for trademarks, patents, copyrights, and trade secrets.
What is the purpose of the exclusionary rule?
To prevent use of evidence obtained through violations of constitutional rights
What was Bowen’s primary complaint in his email to Robert Rubin?
Bowen expressed concerns over internal control breakdowns and significant financial risks due to high volumes of defective loans
Describe the “fruit of the poisonous tree” doctrine.
Evidence obtained illegally must be excluded from court
What is “trade dress”?
It involves characteristics like shape, color, or packaging associated with a product, which can be trademark-protected if linked exclusively to its source.
What is the Plain View Doctrine?
Allows evidence seen in plain sight by an officer in a lawful position to be used without it violating the 4th Amendment.
What is the significance of the Lanham Act?
It prevents unauthorized use of trademarks that could confuse consumers
What is the significance of the case Braswell v. United States?
It held that employees acting as records custodians for a corporation are not entitled to 5th Amendment protections, as they represent the corporation, not themselves.
What is the burden of proof in a criminal case?
The government must prove the case “beyond a reasonable doubt.”
What is “genericide” in trademark law?
When a trademark becomes generic and loses protection, as seen with terms like “aspirin”
What is the burden of proof in criminal vs. civil cases?
Criminal cases require proof beyond a reasonable doubt, while civil cases require a preponderance of evidence
Criminal penalties for theft or misappropriation of trade secrets
the Economic Espionage Act of 1996 provide
What is the role of “mens rea” in criminal liability?
It denotes the “guilty mind,” or the intent necessary to commit a crime, which varies by offense
What does ACPA stand for?
Anti-cybersquatting Consumer Protection Act
What does the 4th Amendment protect against?
Unreasonable search and seizure.
What is the 5th Amendment’s protection related to self-incrimination?
It prevents individuals from being compelled to testify against themselves in criminal cases.
How does criminal law differ from civil law?
Criminal law protects society through punishment, while civil law compensates parties for damages due to another’s conduct.
What is “embezzlement”?
The fraudulent conversion of another’s property by someone in lawful possession, often involving misuse beyond given authority.
What is a Ponzi Scheme?
A fraudulent investment operation that pays returns to investors from new investors’ funds rather than profits.
What impact did Citi’s actions have on the financial system?
Citi’s sale of defective mortgages contributed to the financial crisis, leading to a $45 billion government bailout and a $301 billion guarantee of toxic assets by the U.S. Treasury
What was the response from Citi’s general counsel when Bowen reported his concerns?
Citi’s general counsel acknowledged receiving Bowen’s report but told him not to contact them further, and they did not follow up
What is the Model Penal Code
A code adopted by the American Law Institute in 1962, which serves as a basis for criminal law in nearly two-thirds of U.S. states.
A formal charge or accusation of a serious crime, issued by a grand jury if enough evidence exists
Indictment
What is the difference between trademarks and service marks?
Trademarks identify products, while service marks identify services, such as hotel or transportation brands
What triggered Sherry Hunt’s whistle-blowing actions?
Hunt’s discovery of fraudulent mortgage practices at Citi, combined with her supervisors’ threats to lower defect reports, motivated her to act as a whistle-blower
What protections does the Economic Espionage Act offer?
Criminalizes trade secret theft, especially in cases involving economic espionage
What does MPC stand for?
Model Penal Code
What were the “two flows” of CitiMortgage’s correspondent business channel?
The “Underwritten Flow” required Citi to review each mortgage file before purchase, while the “Delegated Flow” allowed correspondent lenders to approve loans with only sample checks by Citi