Business Law - Test 2

an option is

a seperate contract for the limited purpose of holding the offer open

click-on agreements

a user assents to contractual terms by clicking on a button that reads "yes" or "I agree."

valid contract

One that meets all legal elements of contract

The idea behind the doctrine of ratification

One who waits too long to complain has indicated satisfaction with the agreement despite the initial lack of true consent.

the minor who misrepresents his or her age is not allowed to defraud adults by doing so. The courts have used several methods to achieve this result.

Some courts allow the minor to disaffirm but require the minor to place the adult in status quo. Others hold that the minor is estopped from raising the defense of minority and is therefore bound by the terms of the agreement. Many states allow the minor to disaffirm but hold the minor liable to the adult in tort for deceit.

In the United States an individual is liable for disclosing or using a trade secret if she

acquired it by improper means (theft, spying, bribery) obtained it from one who acquired it by improper means breached a duty of confidentiality regarding the secret acquired it from someone who breached a duty of confidentiality regarding the secret

bids

advertising for bids; Even though a subcontractor's bid is an offer, it generally cannot be withdrawn if the general contractor has relied on it.

The main thing a court looks for in deciding whether the parties entered into a contract is an

agreement

compositions

agreements between a debtor and two or more creditors who agree to accept a stated percentage of their liquidated claims against the debtor at or after the due date, in full satisfaction of their claims

A contract is executed when

all parties have fulfilled their obligations

to prove fraud one must prove

all the elements of misrepresentation plus that the misrepresentation was knowingly made with the intent to deceive

requirements that a promise had to meet before it would be considered a contract

an agreement (an offer and an acceptance of the offer) supported by consideration (with some exceptions) voluntarily entered into parties have the capacity to contract parties have the capacity to do a legal act or acts - in addition written evidence is required -

Voidable Contract

an agreement that may be cancelled by one or both parties

Sellers at auctions are generally held to be making

an invitation to offer

sales contract

any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a contract

the offeror who remains silent impliedly authorizes the offeree to accept by

any reasonable means of communication

article 2 of the UCC

applies to all contracts for the sales of goods

four basic categories of distinctivness

arbitrary terms, suggestive terms, descriptive terms, generic terms

a contract is executory

as long as it has not been fully performed

is an offeree uses an ____ and ____ of communication an acceptance is generally effective when

authorized means, stipulated means; dispatched

arbitrary terms

bear no logical or suggestive relation to the actual characteristics of the goods; courts treat it as distinctive and automatically qualify it for trademark protection

the offer is still valid if it has not

been terminated by its own time limit lapsed been revoked been rejected been terminated by operation of law due to: death or insanity by either party destruction of the subject matter intervening illegality

bilateral contract

both parties make a promise

undue influence

closely related to duress, but exists only when the parties had some confidential relationship at the time of the contract

when a misappropriation occurs the owner is generally entitled to

compensatory damages, and in cases of willfull misappropriation, punitive damgages

a minor can disaffirm a contract unless

contract is for necessaries contract is for real estate and minor has not reached majority minor is required to return adult to status quo first minor has lied about age minor has ratified contract on reaching majority

the greatest number of preexisting duty cases involve

contractional duties

An offeree may impliedly reject an offer by making a

counteroffer

Three elements must be proven for a copyright holder to recover under a theory of contributory copyright infringement:

direct infringement by a primary infringer knowledge of the infringement by the defendant material contribution to the infringement by the defendant

to prove vicarious copyright infringement

direct infringement by a primary party a direct financial benefit to the defendant the defendant's right and ability to supervise the infringers

trademarks must be

distinctive

respondant superior

employer is responsible for actions of employees

legal value has to do do with adequacy of consideration... true or false

false

US originally used a ___ system but just switched in 2013 switched to ___ sysytem

first-to-invent, first-to-file

Necessaries

generally defined as those things that are essential to a minor's continued existence and general welfare.

how long does a copyright last in the US?

generally, the life of the author plus 70 years; it may vary

United Nations Convention on Contracts for the International Sale of Goods (CISG)

goal of the CISG is to unify and codify an international law of sales

Emancipation

he term used to describe the termination of a parent's right to receive services and wages from a child and to generally control him

intent is determined objectively by answering the questions of

how definite the supposed offer is and whether the offeror has communicated it to the offeree

estoppel can prevent the offeror from revoking if

if the offeree reasonably relied on the offer in such a way that he will suffer some significant loss

what are two ways that consideration can have legal value

if the promisee does or agrees to do something he has no prior legal duty to do in exchange for the promisor's promise if the promisee agrees not to do something he has the legal duty to do in exchange for the promisor's promise

there is a valid offer if there is

intent, definitness, communication

there is a valid acceptance if there is

intent, exactness, communication

fraud

intentional misrepresentation of an existing, important fact

quasi contract

is a legal fiction created by the court to avoid injustice; it requires the defendant to act as if he act promised to pay for the benefit he voluntarily received

when a contract for a necessary is disaffirmed a minor

is held liable for reasonable value of necessaries used

what is the first question you should ask when trying to identify if the contract is under article 2?

is this a contract for the sale of goods?

the code is different from common law because...

it is more concerned with rewarding people's legitimate expectations than with technical rules, so it is generally more flexible than traditional contract law.

what makes a firm offer?

it must be made in signed writing, the offeror must be a merchant, it must contain assurances that it will be held open

Void Contract

lacks one or more of the basic requirements for a contract

Excluded from patent protection are

laws of nature, physical phenomena, and abstract ideas.

contract

legally enforceable promise or set pf promises

Misrepresentation needs

materiality, a fact, justifiable reliance, detriment to the plantiff

Fraud in the execution

misstatements about the content or legal effect of something usually contained in a form or preprinted contract

are ads for the sale of goods at a specified price offers?

no

can anyone other than the original offeree accept an offer

no

Extraterritorial Reach of U.S. Patent Law

no infringement occurs under U.S. law when a product patented in the United States is made and sold in another country.

any attempt by the offeree to accept by a _____ is not effective until the acceptance is actually received by the offeror

non-authorized means

____ + _____ = agreement

offer + acceptance

An offer is terminated when it is rejected by the

offeree

Ads for rewards for the return of lost property, for information, or for the capture of criminals are generally held to be

offers for unilateral contracts

many courts hold a contract to be bilateral whenever possible; this holds that

once the offeree has begun performance, the offer cannot be withdrawn

The basic idea of misrepresentation

one of the parties to a contract created in the mind of the other party a mistaken impression about an important fact or facts concerning the subject of the contract

duress

one of the parties, by making some threat of harm, forced the other party to enter an agreement he or she would not have otherwise entered

unilateral contract

only one party makes a promise, the other performs an act in exchange for the promise

to establish direct copyright infringement, a plaintiff must prove

ownership if a valid copyright copying of constituent elements of the work that are original

There are four basic types of intellectual property:

patents, trademarks, copyrights, and trade secrets.

the Code also tried to promote fair dealing and higher standards of behavior in the marketplace by

places duty on people making agreements to act in good faith it recognizes the concept of an unconscionable contract imposes certain standards of quality on sellers of goods as a matter or law limits seller's power to contractually disclaim responsibility for their goods

The basic thing the courts require for the creation of an offer is a

present intent to contract

first in time equals first in right

priority ordinarily comes with earlier use of a mark in commerce. It is not enough to have invented the mark first or even to have registered it first

A copyright

prohibits the unauthorized reproduction of creative works

In regards to nonconforming forms, if one or both parties are nonmerchants, the additional terms are treated as

proposals for addition to the contract

Patents

provides its owner with the exclusive right to make, use, or sell an invention or process during the patent period.

patent trolls,

purchase patent rights without the intent of directly using them. Instead, these page 138patent-holding firms demand licensing fees from companies who knowingly or unknowingly infringe upon their patent rights.

Fair Use Defense (4 factors)

purpose and character of the use (commercial uses are presumptively unfair) nature of the copyrighted work amount and substantiality of portions used effect on the market

scienter

refers to the mental state of the defendant

merchant

regularly deals int he kinds of goods being sold

Consideration

requires a promisee to pay the "price" the promisor asked for in order to gain the right to enforce the promisor's promise.

Duress and undue influence are terms used to describe

situations in which one party to an agreement interfered with the other party's ability to resist entering into the agreement

goods

tangible personal property

territoriality principle

that priority of trademark rights in the United States depends solely upon priority of use in the United States, not on priority of use anywhere in the world; has famous mark exception

The law uses the word capacity to describe

the ability of a person to do a legally valid act

First Sale Doctrine

the doctrine that allows purchasers of a copyrighted work to resell it or rent it out

an offer is

the manifestation of a willingness to enter into a contract if the other person agrees to the terms.

In regards to nonconforming forms, the Code says that if the parties are both merchants, the additional terms in the offeree's form are included in the agreement unless

the offer expressly limited the acceptance of its own terms the new terms would materially alter the offer the offeror gives notice of obkjection to the new terms within a reasonable time after recieving the acceptance

option contract is created when

the offeree gives the offeror something of value in exchange for a promise not to revoke the offer for a stated period of time

a contract is express when

the parties have directly stated its terms at the time the contract was formed

Primissory Estoppel

the principle that a promise made without consideration may nonetheless be enforced to prevent injustice - protects reliance

what does it mean if an auction is being advertised as "without reserve"?

the seller is required ti accept the highest bid

browse-wrap agreements

these agreements claim that a user assents to the terms by taking a specified action, such as using a certain website or page 199installing software.

an adult must prove contract is for necessaries by showing

they are essential to minor's continued welfare/existence minor's age, station in life, and personal circumstances render an item necessary necessaries have not been provided by a guardian

Unlike the UCC, the UN Convention on Contracts for the International Sale of Goods (CISG) holds acceptances to be effective when

they are recieved

things can have legal value without having monetary value... true or false>

true

true or false - a copyright comes into existence automatically upon the creation of a work?

true

An honest dispute about the existence or amount of a debt makes the debt an

unliquidated one

mistake

used in contract law to describe the situation in which one or both of the parties to an agreement acted under an untrue belief about the existence or nonexistence of a material fact

service mark

used to describe businesses

forbearance

when someone promises not to file a legal suit in exchange for a promise to pay a certain sum of money or some other consideration

implied contract

when the surrounding facts and circumstances indicate that an agreement has been reached

generic terms

which describe a characteristic or ingredient of the article to which they refer; if a term is generic, courts are unwilling to afford it trademark protection.

descriptive terms

which describe a characteristic or ingredient of the article to which they refer; trademark protection exists only if a claimant proves that the term conveys to consumers a secondary meaning of association with the claimant

suggestive terms

which suggest rather than describe the characteristics of the goods; courts treat it as distinctive and automatically qualify it for trademark protection

Stipulated Means of Communication

Time, place, or method of communication spelled out in offer.

Unenforceable Contract

A valid contract rendered unenforceable by some statute or law.

To recover for trademark infringement, a plaintiff generally must show that

(1) it possesses the trademark; (2) the defendant used the mark in commerce; (3) the defendant's use of the mark was in connection with a sale, distribution, or advertising of goods and services; and (4) the defendant's use of the trademark is likely to confuse customers.

To prevail on a trademark dilution claim, a trademark owner must prove that

(1) its marks are famous; (2) the defendant is making commercial use of the marks in commerce; (3) the defendant began using the trademarks after they became famous; and (4) the defendant's use of the trademarks dilutes their distinctive quality.

Vanity Fair test steps

(1) whether the defendant is a U.S. citizen, (2) whether the defendant's actions have a substantial effect on U.S. commerce, and (3) whether relief would create a conflict with foreign law

five things that create a lack of voluntary consent

Misrepresentation, fraud, duress, undue influence, mistake

design patents are protected for

14 years

Patent protection generally runs for a period of

20 years

how many articles is in the uniform commercial code?

9

uniform commercial code

A collection of laws that governs various types of business transactions.

differences between UCC and CISG

CISG - international commercial sales of goods - applies only to merchants - mirror image rule - no consideration needed to modify the contract - no writing needed UCC - any sale of goods - applies to any party - offer and acceptance must contain the same terms - no consideration needed to modify the contract - sales of goods in excess of $500 requires a writing

what is the difference between UCC and CISG

CISG does not consider an offer sufficiently definite if it lacks price

Trade names

Descriptive terms that identify the businesses themselves, rather than their products or services

Adequacy of Consideration

Fairness of the bargain

trade secret

Information or a process that gives a business an advantage over competitors who do not know the information or process.

licencing agreement

It permits an intellectual property owner to grant to another the right to use protected technology in return for some form of compensation.

trademark dilution

These laws protect "distinctive" or "famous" marks from unauthorized uses even when confusion is not likely to occur

takes place when one party engages in the unauthorized use of another party's patent

U.S. businesses may petition the government to block the importation of foreign goods that infringe U.S. patent rights the patent holder is entitled to monetary damages (up to three times the losses caused by the infringement a court may issue an injunction to prevent future violations.

Vanity fair test is used when

U.S. citizens are sued for violating U.S. trademarks abroad.

Patentability of Incremental Advances

U.S. patent law prohibits patent protection for incremental changes when the differences between the new product or process and the prior art would have been obvious to a person having ordinary skill in the art at the time the original product or process was made.