Upgrade to remove ads
Only $35.99/year

BUL 3310 final

Terms in this set (76)

Intellectual Property
A form of intangible property representing the product of one's mind. Legal rights _____ are those aspects of ______ capable of being protected under the laws of a country.
Copyright
Protecting original expressions. Exclusive right to print or sell a product of you intellect
Trademark
Protecting indicators of the source of products and services. Distinct mark, motto, device or emblem- fixing symbol to item to discuss origin or culture- Seminole head, Nike swoosh (some contains words, some don't)
----must be a "word, name, symbol, or device, or any combination" of those items. It must identify and distinguish a product or service
Trade Secret
Protecting valuable secrets. info or a process that gives a person or business an advantage to competitors that don't have access to that info or process (customer lists, marketing techniques etc.)
Patent
Protecting inventions and methods. Specific grant from government that gives you (the owner) the exclusive right to make, use or sell your invention for a set period of time, process or design
Trade Dress
overall way something looks, not anything that says something, gets same protection as trademark (shirts are garnet and gold but don't say FSU, or they say 'too sexy to be a gator.' or inside a chipotle)
a. The overall appearance of a restaurant or a particular color scheme
b. Leaves you to believe that it is associated with that trademark
c. Gets the same protection if it was a trademark
Types to a copyright
1. Literary/musical/dramatic
2. Pantomime/choreography
3. Pictorial/graphic/sculptural
4. Film/audiovisual/sound
5. Architectural
Ways to obtain a copyright:
-Register copyright with office, gives you most protection
-Poor mans- mailing copy of work to yourself
-Even e-mail to yourself
Collective
used by members of an association to show membership in a particular group (union labels etc.) not saying anything about quality but we are members of a larger, collective stamp on a product
offer
conditional promise made by the offeror to the offeree
Legal detriment as consideration
To give up something you legally have to the right to do.
Ex: giving up drinking if you're already 21. Both parties will receive a legal benefit and incur a legal detriment
Nominal Damages
Purpose is to recognize that one party has won a breach of contract suit, but with no proof of loss, damage is usually a small amount of money
(If there is a contract breach but the non-breaching party suffers no compensable loss, he/she can still recover____ damages).. Bobby and Sammy example.
Compensatory Damages
Purpose is to make the non-breaching party "whole", addressing the expectation interest and providing the benefit of the bargain along with costs and incidentals
--The purpose of and theory of damages are to make the injured party whole.
-- damages must be direct, forseeable result of the breach of contract
Consequential Damages
purpose is to cover unique but foreseeable losses flowing from the breach of contract and is based on evidence that the breaching party knew (or had reason to know) that a special loss would occur if that party breached
-- Indirectly related to the breach but still forseeable to occur
Punitive Damages
Purpose is to punish and deter wrongful behavior; it is used in tort law and rarely employed for contract breach
Incidental Damages
expense or directly cost caused by the breach (getting someone else to finish job)
Bilateral Mistake
All parties must have the same mistake. Occurs when both parties are mistaken as to the same assumption.
Consequences: Either party may rescind. Courts provides remedy called reformation and the courts correct the contract.
Unilateral Mistakes
Where one party makes the mistake.
Consequences: (generally, a contract entered into because of some mistake or error by only one party affords no relief to that party)
Counteroffer
Not only rejects the original offer but off also creates a new offer (or changes the terms) (boat example)
Acceptance
A statement by one party (called the offeree) that he/she is prepared to be bound to the contractual position stated in the offer, the second essential element to the meeting of the minds of the contracting parties
Rejection
Terminates an offer even though the offeror had promised to keep the offer open for a specified time
-- Can be withdrawn anytime prior to time prior to the delivery of the offeror
Mirror image rule:
A common-law requirement that an acceptance could not vary from any term stated in the offer
--To be effective, under this rule, an acceptance must conform exactly to the terms of the offer
the statute of frauds and what types of contracts does it cover at common law?
- contracts you must have in writing
-Contracts that can't be performed within a year
-Promises made in contemplation of marriage (Prenup)
-Promising to answer debts of another
(Suretyship)
-Executive promises- promising to answer for someone that is dead
-Contracts for the sale of goods priced at $500+
-Contracts involving interests in land
Peppercorn rule (small but has value)
Says if two parties enter into a contract to buy something and there is sufficient consideration to support a promise then the court will enforce the contract.
-Ex: If you agree to sell your car to someone for $250 (and we assume it's a rather nice car), the court will generally not inquire as to whether that amount is adequate; only that each party got the benefit of what he or she bargained for and that consideration is sufficient.
Pre-existing duty
The promisor promises something that he/she is already obligated to do.
-I agree to paint your house for $5000 even though last week I agreed to paint it for $4000.
Post consideration
A promise made for actions that already took place

-Ex: Mike, an attorney, agrees to provide free legal services for his friend Jerry. Three months after performance of the services, Jerry and Mike agree that Mike will receive $1,000. Jerry fails to pay and Mike sues. Mike will lose because Jerry's promise is made for consideration in the past and cannot be enforced
Gift
Something that was given to you by another individual
- Not things that can be enforced in the court of law
Void contract
Contract is not a contract in the eyes of the law
-ex: a contract for the sale of an illegal substance will not be enforceable in court
Voidable contract
contract is one in which one or more parties have the power to end the contract
-ex: a contract entered into by a minor with an adult is voidable and can be disaffirmed by the underage party (car lease example).
Mitigation of damages
When a breach occurs, the incident party is held to a duty to reduce the damages that they suffer.
-ex: leaky roof, loss of job, etc
Complete performance
when party's performance of the contract is perfect.
Substantial performance
a party who performs substantially all of the terms of a contract can enforce the contract against the other party.
-Party must have performed in good faith
-Performance must not vary greatly from promised performance in contract
-Performance must create substantially the same benefits as those promised
Liquidated Damages
A fixed sum agreed on between the parties of a contract to be paid as ascertained damages by the party who breaches the contract (If the sum is excessive, the courts will declare it to be a penalty and unenforceable)
----Where parties agree upfront that if someone breaches it that it would be impossible to come to a number so they come up with a number at the beginning to resolve a potential breach
-Ex:Maryland leaving the ACC and leaving us to find two other games. We don't know the damages that will happen in the future.
Penalty clauses
Not legal and not enforceable by the court.
-Looks like a liquidated damage clause
-There is no relation between the damages number and what the party would actually be out
-It is not meant to make someone whole it is just meant to penalize someone
What does the UCC cover?
-Article 2 is the sale of goods (personal property that is moveable) not land, personal service, intangible properties like stocks and bonds.
-Article 2A leases of goods (machines, printers)
-Governs sale of goods & leases; "Goods" means anything movable—except for money, land, service, intangible property
Who are the parties to UCC agreements?
-the buyer, the seller, the merchant (retailer, wholesaler, manufacturer)
-the lessor (owner of goods) & lessee (person borrowing goods/making payments)
Nonconforming goods
when the delivered goods are not the goods specified in the purchase contract
Right to reject
If the goods or the tender of delivery fails to conform to the contract, the buyer has the _______.
Time to reject
must be a reasonable amount of time of rejection
Giving notice to nonconformity
you have to alert the seller they are not conforming (not what they ordered)
Shipment contract
the seller is required/authorized to ship goods by carrier
--The risk of loss passes to the buyer upon shipment
Destination contract
The seller is required to deliver the goods to a particular destination, usually directly to the buyer, but sometimes to another party designed by the buyer.
- seller retains risk loss
Requirement contract
I agree to sell you all you need up to a certain amount
--"I'll buy all the widgets I need from you this year"
Output contracts
I agree to buy all the products you have to sell me
--"I'll sell you all the widgets I manufacture"
Commercial units
A single whole for purposes of sale, one that would be impaired in value if divided.
-Smallest unit you can buy
-ex: can not buy a stick of gum, must buy whole pack
Employment at will
can be fired/quit at any time for any reason
Employment contract
an employee who works under contract for an employer
-They're hired for a specific job at a specific rate of pay
-They aren't considered a permanent/regular employee
-They can be fired under contract terms
FMLA- when can you get it?
-Birth of a child (can be paternity time off)
-Adoption/foster care placement
-Care for a child, spouses, or parent
-Your own serious health condition
FMLA- Remedies/penalties
(anything under the sun)
-Damages to compensate employee for lost wages/benefits & monetary losses
-Job reinstatement
-Promotion (if it was denied)
FLSA- Employment of minors
Prohibits oppressive child labor
-Those under 14 are only allowed to do certain jobs(such actors/actress)
-Restrictions on how many hours a week they can work (unless 16-18 years old)
-None can work in hazardous situations
Overtime
Any employee who works more than 40 hours per week must be paid no less than 1.5 times their regular pay for all hours over (time & a half)
Disparate treatment (intentional)
-A type of discrimination that requires plaintiff to show the presence of intentional discrimination
-Based on discrimination against protected class intentionally
-Must be qualified for job & rejected by employer
Disparate impact (unintentional)
-A type of discrimination that occurs where an employer uses an employment practice that, while neutral on its face, has an adverse impact on members of a protected group -Based on unapparent/non-malicious discrimination against protected class that adversely affects that person
---Ex. only hiring people over 5'10"
The Age Discrimination in Employment Act (ADEA)
Prohibits employment discrimination on the basis of age against people 40+ years old.
Must establish prima facie case:
-Member of protected class
-Was qualified
-Discharged because of age
The American with Disabilities Act (ADA)
prohibits discrimination in hiring on basis of disability & employer can't deny/offer you different types of benefits
Reasonable accommodations:
if an applicant/employee with a disability & with a reasonable level of accommodation can perform essential job functions, the employer must make that accommodation.
Bona Fide Occupational Qualifications (BFOQ)
identifiable characteristics reasonably necessary to the normal operation of a particular business
(If you are looking for a priest at a catholic church a qualification would be that they need to be catholic. If you own a bathing suit design for woman you would only be looking for female models)
Defenses to discrimination claims
-Business Necessity (ex. have to have law license)
-Bona Fide Occupational Qualifications (BFOQs) (ex. Hooters GIRLS, Catholic priest)
-Seniority Systems (ex. policy of promotion based on time working there)
-After-Acquired Evidence (ex. firing someone not for disability, but poor performance)
Different types of discrimination
Based on: race, color, national origin, religion, disability, gender, & age
Protected classes:
a class of person's defined by one or more of the types of discrimination.
Constructive discharge
-When the employer creates a work environment that is so uncomfortable that a reasonable employee would quit
-- can be physical or emotional 0
Union
a collection of employees going to negotiate certain employment topics. They form a group and negotiate it through a bargaining unit. A larger voice working towards the same thing. Ability to put more pressure on the employer
Charter:
The document issued by the state that creates the corporation
Articles of incorporation
the basic governing document of a corporation (what you file)
Bylaws
rules of governing and managing the affairs of the corporation. It is adopted by the shareholders
Resolutions
Advisory or policy statements adopted by board of directors that kind of tells the officer how they should be acting.
Shareholder rights
-The right to inspect the books and papers of the corporation.
-The right to attend shareholders' meetings and vote for directors on certain matters such as dissolution or merger.
-The preemptive right
-Right to bring shareholder derivative suit
-The right to share in the profits when a dividend is declared.
Partnership Dissolution
occurs any time there is a change in the partners, either adding a new partner or having a preexisting partner die, retire, or otherwise leave.
1.)By agreement of all the partners
2.)By judicial decree--order from the court that says if one of the partners is declared insane
3.)By operations of law
Merger
Two or more firms coming together. One absorbs the other.
Horizontal
Two parties are competitors and forming together to form a single entity
Vertical
one company that is a supplier of the other forming together
Conglomerate
merging of companies that have neither the relationship of competitors nor that of supplier and customer.
Arbitrary
completely made up (pieces of art, gets most protection) strong completely newly designed logos.
-Google
Generics
descriptive of a larger category of items (bicycle or computer). Has no protection.
-Trademark can become this by the usage of the term.
Secondary Meaning
descriptive or suggestive term or terms already in use or in existence
-ex: under armour, netscape (suggestive term)
Limited partnership
A partnership in which one or more individuals are general partners and one or more individuals are limited partners. The limited partners contribute assets to partnership without taking part in conduct of the business. They are liable for debts of a partnership.
Other sets by this creator