Test 3. Chapters 8,10,11,12 Flashcards
property that results from the intellectual and creative process.Although ideas are intangible, they are some of the most important assets of companies and therefore need to be protected.
Intellectual property
examples of intangible assets
brands
names
originals words
secret business information
a distinctive word, symbol, sound, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by others.
Trademark
enacted to protect manufacturers from losing business to rival companies that use similar trademarks.
The Lanham Act of 1946
Occurs when someone owns a famous distinctive mark, the defendant uses a similar mark that leads to an association between the two, and the association impairs the distinctiveness of the famous mark
Trademark dilution
Whenever someone else uses a trademark in its entirety or copies it to a substantial degree, intentionally or unintentionally, the trademark has been infringe
Trademark infringement
what are the rights of a trade mark owner?
1) USE THE MARK IN COMMERCE
2) PREVENT COMPETITORS FROM USING A CONFUSINGLY SIMILAR MARK
3) PREVENT DILUTION OF A
FAMOUS MARK
- a name that a business uses to identify itself and its brand.
- Unique trade names are protected under the common law.
- a name that is the same as the company’s trademarked product is protected.
Trade name
An agreement by the owner of intellectual property to permit another to use a trademark, copyright, patent, or trade secret for certain limited purposes
licensing
gives an inventor the exclusive right to make, use, and sell a product for 20 years.
patent
- The first person to file an application receives protection.
- There is a 9 month limit for challenging a patent.
The America Invents Act
What Is Patentable?
Almost anything is patentable, except the laws of nature, natural phenomena, and abstract ideas.
Making, using or selling another’s patented product without permission ,May also occur even though not all parts of an invention are copied
patent infringement
a patent prevents others from…
making, using or selling the invention
a property right granted to the author or originator of certain literary or artistic productions.
copyright
Copyright owners are protected against…
- Reproduction of the work
- Development of derivative works
- Distribution of the work
- Public display of the work
- Occurs whenever the form or expression of an idea is copied
- The reproduction does not have to be exactly the same as the original.
copyright infringement
Material can be reproduced for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
the “fair use”Exception
a formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.
trade secret
a promise to perform ,that is based on the voluntary agreement of the parties and is enforceable
A contract
One promise, given in exchange for performance – contract is not formed until performance is completed.
Unilateral Contract
Two promises—promise is exchanged for a promise. Here, a contract is formed as soon as promises are exchanged.
Bilateral Contract
often said to be agreeing to the “same bargain at the same time” – a meeting of the minds.
Mutual assent
A statement by an offeror (OR) that creates the power of acceptance in the receiver – offeree (OE)
offer
what are Three Requirements for Valid Offer?
Intent to contract
Definiteness and certainty
Communication to offeree
At common law a valid offer must include?
Identification of subject matter of contract Quantity Price Payment terms Delivery Terms
Offers terminate upon?
Revocation
Rejection/counteroffer
Lapse of time
- A misrepresentation of material fact occurred
- An intent to deceive
- The innocent party justifiably relied on the misrepresentation
- The party was harmed as a result of the misrepresentation
fraudulent misrepresentation
involves wrongful pressure exerted on a person during the bargaining process
Undue influence
Forcing a party to enter into a contract under fear or threat makes the contract voidable.
duress
Groups lacking capacity…
- Minors
- Those suffering a mental disability
- Those who are intoxicated
Lack of capacity at the time the contract is being made. Contract is either voidable or valid, depending on circumstances.
intoxication
Right to avoid a contract
disaffirm
occurs when a person who reaches majority indicates that he/she intends to be bound by a contract made while still a minor
Ratification
person is adjudged mentally incompetent by a court of law and a guardian has been appointed.
Void
person does not know she is entering into the contract or lacks the mental capacity to comprehend its nature, purpose, and consequences.
Voidable
when person is able to understand the nature and effect of entering into a contract but may lack capacity to engage in other activities (known as “lucid” intervals).
Valid
Provides that a legal action must be commenced within a certain period of time,Generally 4-6 years
Statute of Limitation (SOL)
provides that certain Ks must be in writing to be enforceable:
Involving Interest in Land
Act as surety (i.e., to pay the debt of another)
Sales of Goods over $500
Statute of Frauds (SOF)
after the parties enter into a contract an event occurs that will make performance of the contract objectively impossible.
Impossibility
before acceptance of offer, terminates the offer.
Destruction of the Subject Matter
automatically terminates unless irrevocable offer.
Death or Incompetence of the Offeror or Offeree
Three broad categories of damages:
Compensatory
Consequential
Punitive- (Not generally awarded in Breach of Contract Claims)
Compensates non-breaching party for loss of the bargain.
Compensatory Damages
the cost of substitute performance versus the contract price
Standard Measure
An offer made by a merchant in writing and signed by the offeror is irrevocable for reasonable period of time (no more than 3 months). No consideration is necessary.
Merchant’s Firm Offer
is both an acceptance and a breach unless the goods are sent as an accommodation to the buyer with prompt notice
Non-conforming goods
occurs when seller delivers conforming goods to buyer,Requires reasonable notice,Reasonable hour and manner
Tender of delivery
If goods, or tender of delivery, fail to conform to the contract, the Buyer has the right to:
Accept the goods
Reject the entire shipment
Accept part and reject part
Perfect tender rule
seller can replace defective goods within the time of contract performance
cure
Constitutes breach of contract; the non-breaching party may suspend performance and pursue a remedy
The party can wait a reasonable time to see if the repudiating party will perform.
Anticipatory Repudiation
an assurance by the seller concerning the goods, arise in most sales,and can be disclaimed or modified in the contract.
warranties
the seller makes representations about the quality of the goods
- Affirmation of fact or promise
- Description
- Sample or Model
Express warranty
one that the law derives by inference from the nature of the transaction
Implied warranty
manufacturers must exercise due care to make a product safe
negligence
when a buyer is knowingly misled about a product
misrepresentation
