GB110 final

A crime is

Anyone who violates a statue

intermediate appellate court

Appeals court (every state has 1)

privilege against self-incrimination

Applies to individuals but not all businesses (corporations, limited liability companies or limited liability partnerships)

The wicked test states that if the state or private activity involved effects interstate commerce then the federal government through the commerce clause may pass laws which regulate that activity

Flase

Law on your side

Go infront of judge (judge generally does what law says)

Law against you

Go infront of jury

Saint Thomas Equinise

God puts our mortality into us when we are born, the world exposes the mortality in you

Probable cause

Greater than 50% belief, affirmation (someone swears under oath to judge with peticularity

Judge must follow a

Higher prior court decision

As between an intended beneficiary and an incidental beneficial, only an intended beneficiary may sue under the contract if the insurance company fails to pay upon death

Most insurance companies have exclusions regarding what death activities they will not cover

Plaintiff vs. Defendant

Moving, accusing, pi vs triangle

Child tresspasser

Must protect from all reasonably known risks

Incidental / consequential damages

Naturally flow from ^

Misrepresentation

Negligently misrepresenting a material fact

Reasonable man

Never forget anything, no emotion, never legally wrong

Does 4th amendment say you can be searched

No cannot be UNREASONABLY searched can be reasonably searched

Adult tresspasser

No willful or want or conduct

Mirror image rule

Offer and acceptance have to be the same

The mailbox rule states that an acceptance is effective when mailed or placed into the stream of communication, everything else is effective when received

Oh test if 2nd part is left out, it's wrong*

Issues of law

Only appeal issues of law judge says something, it's an issue of law

Can't defend home with deadly force

Only restrain them

A contract can be

Oral, written, express, or implied

Licensee

People go have right to come onto your property by virtue of common law or a statute (police fire postman)

Trespassers

People on your property w out legal right

The us constitution is only ok

People wouldn't sign it and bill of rights was made ppl wanted 12 things n got 10

Invitees

People you invite onto your property (guests)

Promise is NOT saying you'll do an action it is an action

Physical actions translate into agreement

14 jurors 12 on jury 2 alternates

Pre-emptory challenge throw 2 jurors off bench

double jepardy clause

Precludes gov't from prosecuting a defendant for the same offense after the defendant has been acquitted or convicted

Executive branch (article 2)

President

Other Limits on Agency Powers

President's removal / appointment of heads Judicial limits: 1.Plaintiff proves ripeness and standing 2.Exhaust administrative options 3.No review of discretionary matters 4.Judges defer more or less depending on challenge: →

A personal service contract

May not be delegated without the consent of all of the parties to the original contract. For example if you hired a farmed painter to paint your portrait l. She may not assign(delegate) those duties to her student

Implied

Merchantability, product will act the way it's supposed to act In mass can't get rid of implied

The law is the

Moral minimum

Other limits on agency powers

Presidents removal/appointment of heads Judicial limits: Plaintiff proves ripeness and standing Exhaust administrative options No review of discretionary matters Judges defer more or less depending on challenge

Punitive damages

Punish nothing to do w the other damages

•Specialization: collecting expertise •Gap filling: Congress creates statutes, agencies fill details by regulations or rules

Purposes of Agencies

exclusionary rule

Exclusion of evidence (4th amendment violation may prevent prosecution from using the seized evidence at trial)

A bilateral contract is formed as soon as the performance ends.

False

A contract cannot be modified, (added to or varied) by any prior or contemporaneous oral statement, except those that explain ambiguities.

False

A person can have an enforceable contract for an illegal act as long as both parties to the contract agree in writing

False

A person who is intoxicated but who still understands the terms and consequences of a contract lacks contractual capacity due to the consumption of alcohol

False

A third party beneficiary to a contract will always be allowed to sue for enforcement of a contract.

False

A, benefit corporation has its' highest priorities benefiting its stockholders

False

Because it's a fundamental right, the 1st amendment guarantees the public the right of free speech under any and all circumstances

False

Compensatory damages are those damages which naturally flow from the incidental damages

False

If a contract is part good and part service the one commenced first governs the law we will follow.

False

If a minor signs a contract while they are a minor they can always avoid the contract while they are a minor.

False

If a person is lost and breaks the close of another directly as opposed to indirectly, then they cannot be found responsible for a trespass because the lacked the intent (motive) to trespass

False

If a person is summoned to court to be a witness in a criminal case against a friend. The witness, who committed no crime, may claim their 5th amendment privilege to avoid testifying as the 5th amendment prohibits the courts from forcing one to testify in a criminal case if they desire not to.

False

If the breaching party's breach is immaterial then the non-breaching party has a choice of whether to terminate the contract or not.

False

In a civil case of negligence we must look to the subjective intention of the parties who was negligent to determine if they are at fault

False

In a contributory negligence system we compare the relative negligences of the parties to determine amounts of recovery

False

In a criminal case the standard of proof is by the preponderance of the evidence, I.e. to a moral certainty

False

In a criminal trial if the prosecution proves beyond a reasonable doubt greater than 90% of the elements of the crime then in that event the prosecution is granted one more opportunity to try and convict the defendant, but it must be at new trial at another time

False

In a criminal trial the jury must by a majority find the defendant guilty beyond a reasonable doubt for each and every element of the offense

False

In a trial before a jury the judge makes findings of fact as well as findings of law

False

In mass the Good Samaritan statute, protects those who aid in distress as long as they have acted without the expectation of monetary gain

False

In mass there is no assumption of risk, unless that assumption of risk is in writing and signed by the party assuming the risk

False

In mass, deadly fires is only that level of force which causes death

False

In mass, you can only use the doctrine of assumption of risk if there is reasonable notice, I.e., with a sign

False

Nuisance is intentional interference with another's use and enjoyment of their property. There are two general types public and private.

False

Once a duty is assumed, the actor must continue to aid, to the best level that they are currently capable

False

One cannot have an enforceable contract for an action which is unconscionable, UNLESS both parties agree in writing.

False

The rule of precedence states that a court must follow a prior court's decision if the facts of the case at hand are identical to the prior case

False

The standard for trying a criminal case is beyond all possible doubt

False

The us constitution and the bill of rights were signed on September 17, 1787 and are the basis of our l American legal system

False

Under the common law Statute of Frauds, the promise to pay the debts of another must be in writing to be enforceable, unless the promise is to pay the debts of ones' spouse in which case the fact that the parties are married negates the writing necessity.

False

Under the common law the mirror image rule states that the offer and the acceptance must be identical. This being a statutory rule we have adopted from England.

False

Under the natural law theory we define the good as the greatest good to the greatest number of people. This increasing the total good.

False

Under the statute of frauds the writing needs to be signed by the party who seeks to enforce the contract.

False

If a store owner knows of a hazardous condition and uses a caution floor wet sign, and if a person slips on the area because they failed to heed the warning sign, (which was conspicuously placed near the water), the store will be free from liability

Flase

In a delegation contract

The delegator's duties under the contract are transferred to another (the delegatee) but the delegator still remains liable for duty to perform if the delegatee fails to properly perform (both liable)

In mass a unilateral contract is formed when

The performance ends

If a person who suffers a breach

The person who suffers must mitigate

Under UCC article 2 Statute of Frauds

The sale of goods $500 or more must be in writing to be enforceable except between merchants for specifically manufactured goods or when the other party acknowledges the contract or when partial payment has been made pursuant to the contract

Consideration can be money, monies worth or the giving up of a legal right

The same consideration cannot be used twice

A bilateral contract is formed when

The second promise is made

A writing for the purposes of the statute of frauds is any written memorandum sufficient to show intent to contracts

The writing needs to be signed by the party to be changed, (bound to the contract)

Third party beneficiaries

There are two types of beneficiaries to a contract intended beneficiary and incidental beneficiary

Liquidation damages

These are damages which are agreed on by the parties to a contract prior to there actually being a breach of contract. If a breach latter occurs, then the non-breaching party may (assuming the amount is fair and reasonable) recover only the liquidated amount stated in the contract, regardless of their actual damages suffered

Every state other than mass get rid of implied warranties

They say product is sold as is

Miller test

To determine if something is obscene 1)whether average person applying contemporary community standards would find the work as a whole appeals the prurient interest 2)whether the work depicts or describes in a potentially offensive way sexual conduct, specifically defined by applicable state law 3)whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Commerce Clause

To regulate commerce w foreign nations, among the several states, and w in the Indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States

Entry-Level Court

Trial court, district court

A Minor may avoid a contract, for other than necessaries, even if they lie about their age.

True

A Minor may not avoid a contract for necessaries.

True

A breach of contract action can never be a tort

True

A contract can be oral, written, express or implied.

True

A unilateral mistake is not avoidable by the party making the mistake unless the other party has reason to know of the mistake

True

An adhesion contract is a take it or leave it type of contract.

True

An incidental beneficiary to a contract may not sue to enforce the contract

True

Compliance with the law is considered the moral minimum

True

Consideration can be the giving up of a legal right. It need not be money.

True

Corporate officers may be found liable for the criminal conduct of the corporation

True

If a person is being sued civilly there will never be the possibility of jail time as a sentence

True

If the subject matter of the contract is destroyed through no fault of either party then the obligations of the parties under the contract is at an end.

True

If we have an immaterial beach then we have substantial performance.

True

In a comparative negligence state we always compare the relative negligence of the parties

True

Kantian philosophy states that individuals should evaluate their actions in light of the consequences that would follow if everyone in society acted in that same way

True

Proximate cause is that casual chain which is reasonably forseeable

True

Self defense is always the use of equal and opposite force

True

Specific performance may be obtained as a contractual remedy only if there is no adequate remedy at law.

True

The Peppercorn theory states that consideration can be as small as a peppercorn.

True

The peppercorn theory indicates that the consideration on each side of the contract need not be equal, but must exist

True

The phrase "Time is of the Essence" always means that all dates within the contract are firm dates, such that if performance is completed after the date the non-performing party is in breach of contract.

True

To prove negligence we must have a duty, a breach of duty, proximate cause, and damages

True

Trespass is intentionally breaking the close of another by either direct or indirect means

True

Unconscionable terms in a contract will not be enforced.

True

Under Uniform Electronic Transactions Act a signature may be accomplished, via electromechanical device.

True

Under the present common law a rejection is effective when received.

True

Under the statute of frauds the writing can be any memorandum sufficient to show intent to contract and thus the entire contract need not be in the writing.

True

Copyright

Under the Federal Copyright Act of 1976: Copyright owners have the right to prevent unauthorized copying of original works that are fixed in a tangible media of expression. E.g.Books, web pages, art, music & pictures. This includes derivative works, i.e. those which stem or flow from the original. The length of the copyright is the life of the Author plus 70 years (Employer copyrights last 95 years from date of Publication) You cannot sue for infringement until you have filed for a copyright with the USPTO (U.S. Patent and Trademark Office).

Judicial branch (article 3)

Us Supreme Court and other federal courts

Issues of fact

What judge and jury hear see and believe can't appeal this

Express

What they show you, generally buying stuff for store ie cabinets

Arraignment

What you are accused of, how you plead, tell you your rights

Utilitarianism

Whatever creates the greatest good for the most people

Fitness for a particular use

When store tells you something will work for particular function

The implied warranty of fitness for a particular use arises when a store makes a representation that a product will perform a specific task, different than the one the manufacturer has indicated

When that occurs the store is liable for injuries resulting from the misrepresentation under this implied warranty

Don't trust what someone says

Write it fown

Oral testimony is as good as written testimony

Writing is only better if it's clear and complete

Libel

Written defimation

Assumption of risk

You can take on assume all reasonably known risks

Illegal contract

You cannot have a contract for an illegal act It does not matter if the parties agree to it and that it was signed by big parties It is UNENFORCEABLE

3 Kinds of Agency Rules

see camera roll

Judicial review

see camera roll

Self defense

Equal and opposite force, if aggressor withdraws, you must also withdraw

Negligence Theory

Every manufacturer must design their product against reasonably foreseeable misuses of the product

A written contract cannot be modified added to or varied by any prior or contemporaneous, oral statement except those that explain ambiguities

Except oral statements that explain confusing things

4 part test to determine if commercial speech is constitutional

1) protected by first amendment 2) if asserted gov't interested in restricting speech is substantial 3) whether restriction directly advances gov't interest asserted 4) whether restriction is not more restrictive than necessary to meet gov't interest

Beyond reasonable doubt

52-99%

In mass a unilateral kx is formed when the performance ends

A bilateral kx is formed when 2nd promise is made

Article 2 Sale of Goods (not services)

A good is an item readily identifiable and moveable at time of sale or transfer

Under the UCC article 2 Sale of goods

A good is an item readily identifiable and moveable at time of sale or transfer

Minor Rule

A minor can avoid a contract while they are a minor and for a reasonable time thereafter if they return the item which they received if they still have it (this rule does not work on necessaries) Thus if a minor signs a contract with an adult we have a binding enforceable contract, assuming all contract formation requirements are met. Thus if the adult fails to do what they are supposed to do under the contract then the minor can sue the adult for breach of contract Also assuming the minor does not avoid the contract the minor can be sued for breach of contract if the minor does not do what they are supposed to do under the contract

A price is

A promise for a performance

A unilateral contract is

A promise for a performance

An offer is

A promise for a price

intentional interference with contractual relationship

A tort that arises when a third party induces a contracting party to breach the contract with another party.

Parole evidence rule

A written contract cannot be modified (added to or varied) by any prior or contemporaneous oral statement except those that explain ambiguities

Battery

Actual hit

Notice-and-Comment Rulemaking

Administrative Procedure Act defines process •Notice of proposed rule •Public e-comment period •Agency balances comments for and against •Final rule issues

Notice and comment rulemaking

Administrative procedure act defines process: notice of proposed rule, public e-comment period, agency balances comments for and against, final rule issues

Non-profit

All money coming in has to go out, irs designation

Commerce clause

Allows congress to regulate commerce among the 50 states prohibits the states from enacting laws that would interfere with interstate commerce

Civil

Always suing for money

Criminal plaintiff is

Always the state

An adhesion contract is one which is made up specifically for one side of the transaction and is not in the traditional sense one of negotiation. It is a take it or leave it contract.

An example would be a lease agreement in a large shopping mall signed by a small retailer. The small retailer really does not negotiate the lease but rather signs it so that they have an advantage of being in a mall. The lease is written purely to the benefit of the Landlord. Adhesion contracts are enforceable in Mass if they are fair and reasonable

Every contract must have

An offer, an acceptance and consideration

Limits of agency power

Bill of rights (1,4,5,6,7) Legislative limits: enabling acts(budget) open rules(meetings)

The substantial performance doctrine states that if the breach of contract is immaterial or small then the contractual obligations of the parties continue

But if a breach is substantial or material then in that event the obligations of the parties cease

The phrase "time is of the essence" means that all the dates in that contract are firm dates

But if the phrase is missing then all of the dates are on or about dates

Tort

Civil, non-contractual wrong, not a crime

Specialization

Collecting expertise

Assault

Coming and not hitting, pre-hit, have to perceive it coming (hear see or sense) the fear of the apprehension of fear of imminent bodily contact (intentionally causing the fear or the apprehension of fear of imminent bodily contact)

Commercial speech

Commercial transaction as its goal-sale of product or service

Compensatory damages

Compensate you for the loss

Due process

Conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights including notice and right to a fair hearing before tribunal w the power to decide the case

Gap filling

Congress creates statutes agencies fill details by regulations or rules

Legislative branch (article 1)

Congressional body of 2 houses (senate and house)

Certain actions can be both

Crime and tort

Criminal

Criminally could go to jail

Miranda warnings

Defendants must be informed or their basic constitutional rights (remain silent, what you say can n will be used against in court of law, right to attorney, can't afford attorney one will be appointed)

Assignor transfers rights under contract to the assignee

Delegator transfers duties under a contract to the delegatee

B Corporation

Designed to be giving a large amount to charities

Every state and federal has 3 courts

District court, circuit court, and supreme court

Denominal damages

Dollar damages

4 elements of duty

Duty Breach of duty Proximate cause (reasonably foreseeable causal chain) Damage

Negligence

Duty, breach of duty, causation aka proximate cause, damages

Unconstitutional contract or term

If a court decided that a term, conditional or clause in a contract is so one-sided as to be grossly unfair, then the court will refuse to enforce that term, condition or clause The result is that the unconscionable portion will be removed by the court or modified by the court Thus a court has the power to amend or modify a contract once the parties bring it to the court for enforcement Unconscionability is that place where the term, clause or paragraph offends the morality of the judge. It is something which is grossly unfair or one-sided. ONLY a court can make that determination

Predominant factor test states

If a kx is part good and part service the part which predominates, governs what we follow if good is bigger use UCC if service bigger follow common law

Substantial performance doctrine

If breach is immaterial then the contractual obligations continue but if the breach is substantial or material then the obligations of the parties cease

In a life insurance contract the contract is between the insured party (David) with an insurance company. David pays yearly premiums to insure his life

If he dies his wife will receive $ under the contact from the insurance company. She is the beneficiary under the contract and the intended beneficiary. The children are incidental beneficiaries because they may benefit indirectly from the money received by mom

Contempt of court

If judge orders you to do something and you don't do it

Common law rules of contracts statutory (UCC)

If offer has 5 elements and acceptance has 4 elements it's not a contract they have to be exactly the same

Supremacy clause

If state or local law conflicts w federal statute, regulation, or treaty, federal law takes precedence

Uniform transaction act (Uta)

If the law requires a writing then that writing may be in digital form. The signature must be created by a cyber notary of electromechanical device

Under the UCC we have several implied and express warranties

In Mass the warranty of Merchantability cannot be waived

Contractual damage

In mass you may not ask for punitive damages in a break of contract case You may only ask for a compensatory and incidental

Consideration

Induces you to promise

Nuisance

Intentionally and unreasonable interfering with another's use and enjoyment of their property. (If you move towards nuisance cannot sue, if nuisance was pre-existe cannot sue)

Trespass

Intentionally breaking the close of another by direct or indirect means

Fraud

Intentionally misrepresenting a material fact

Intentional does not ask why you did something

It asks did you do it

Merchantability means that the product is fit for its ordinary use

It is an implied warranty which comes about because of the manufacturing of the goods. It is not an express warrenty

Nobody in the planner believes that

Killing someone for no reason is a good thing

The statute of frauds, which is a common law rule states that certain types of contracts must be in writing to be enforceable, to wit;

Kxs for the sale of Transfer of Land must be made in writing to be enforceable Kxs to pay for the debts of another must be in writing to be enforceable Kxs to pay the debts of a descendent must be in writing to be enforceable Kxs not reasonably capable of being performed within one year must be in writing to be enforceable Kxs incident to a marriage but not between the parties must be in writing to be enforceable

3 kinds of agency rules 2 substantive and 1 procedural

Legislative: analogous to federal statutes Interpretive: general statements of policy or clarifications of the meaning of a regulation Procedural: rules that relate to internal agency operations or rules that relate to procedural techniques

3 kinda of agency powers

Legislative: regulations, notice and comment Executive: information gathering, licensing, recalls (also on agent webpages), fines and warning letters Judicial:ALJs (no jury, relaxed rules)

Immaterial

Little

C Corporation's function

Make money for the shareholders

Mass does not have assumption of risk

Makes victim believe they can't sue

Proximate cause

Reasonably foreseeable casual change, is there a linking of events, yes, is it reasonably foreseeable

Implied

Reasonably implied. What can I reasonably imply from

Mitigate

Reduce damage

Dormant Commerce Clause

Regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors

Making a new service animal rule

Research needed Estimate cost Draft new regulation Notice in fed. Reg. Review comments Finalize new rule

U.C.C. Statue of frauds

Sale of goods $500 or more needs to be in writing

MUTA: Massachusetts Uniform Transactions Act

Same as UTA though on a state level

Avoidance (to avoid does not mean to void)

Say a minor signs a contract agreeing to pay $50 a week for a new stereo for 2 years. If in 6 months he doesn't want stereo and is still minor, he can avoid contract and return stereo and notify they he is avoiding contract. Can also avoid for a reasonable time after becoming adult

Kant

Should never lie, universalize it to ask if it's good or bad

Sixth Amendment

Speedy trial, public trial, impartial jury, informed on impending charges, confront and cross examine adverse witness, compel favorable witnesses to testify, legal counsel

Slander

Spoken delimitation

Puffery

Statements of opinion

Stockholders' derivative suit

Stockholders sue board of directors

Objective: reasonable man

Subjective: you

Everything can be done given

Sufficient time and sufficient energy

Suing in tort

Suing for money, do not have breach of contract action

Highest court

Supreme Court (every state has 1)

stealing

Taking the personal property of another (with intent to deprive permanently)

Stakeholder Theory

Talks about the idea of who are the stakeholders in the company, people who have an interest in a company are people who are affected by the company (look at ripples before making decisions, look at other options)

State sales tax

Tax on the consumer collected by merchant and submitted to the state

AssignOR person is transferring away from themselves to another

assignEE receiving something

Deontology

defines actions as right or wrong

Teleology

the explanation of phenomena by the purpose they serve rather than by postulated causes.

Liquidated damages are those damages agreed to by the parties at the time the contract was formed. Assuming that the figure is fair and reasonable in the event of a breach of contract the non-breaching party's recovery will be limited to that figure.

true

Patents

•A Patent is a Federally granted right to exclude others from Making, Selling or importing an Invention. Inventions includes,(Any Process, Machine, Manufacture or Composition of matter that is New, Useful and Non-obvious.) • •The length of the protection is 20 years from the date of filing. • •Only an Inventor may file for a Patent and they must file for the Patent within 1 year from the date of disclosing the invention to the public, otherwise it becomes part of the Public Domain and is no longer patentable.

Victoria Secrets

•A Sports Illustrated swimsuit model was blocked from launching a line of women's underwear called "SEXY LITTLE THINGS" when a judge ruled that Victoria's Secret could sue her for trademark infringement. •U.S. District Judge Harold Baer said Tuesday that Victoria's Secret appeared to acquire priority in the trademark use of "SEXY LITTLE THINGS" because it had used the label on lingerie sold online and through its retail stores and catalogues since July 28, 2004. • •Domain Name register by Model in 9/2004 VS marketing came upwith name in 6/2004

Not All Pictures are entitled to Copyright

•A selfie taken by a monkey in Indonesia in 2011 using a wildlife photographer's unattended camera prompted an animal-rights group to sue, arguing the monkey, Naruto, should own the copyright and profits from the photo

Limits of Agency Powe

•Bill of Rights •1st, 4th, 5th, 6th & 7th •Legislative Limits •Enabling acts, budget •Open rules, meetings

Judicial Decision

•But animals have no legal ability to hold copyright claims, the Ninth U.S. Circuit Court of Appeals said in its decision, which also questioned PETA's motives in bringing the case. • •We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures

Domain Names may also be Trademarked

•Congress enacted the Anticybersquatting Consumer Protection Act (ACPA) in 1999. •The ACPA prohibits registering in bad faith a domain name that is identical or confusingly similar to the trademark of another and •allows trademark owners to recover between $1,000 and $100,000 per wrongfully registered domain name, as the court considers just.

Economic Espionage Act & Defend Trade Secrets Act

•Economic Espionage Act of 1996 (EEA), which criminalizes trade secret theft by foreign governments or their agents. Although the EEA provides for substantial penalties of up to $10 million and 15 years' imprisonment, only the federal government can bring suit under its provisions. • •Defend Trade Secrets Act (DTSA) expanded federal trade secret protection by providing a private cause of action. Under the DTSA, a business may bring a civil action against anyone who misappropriates a trade secret by improper means.

Trademark

•In 1946 Congress enacted the Lanham Act of 1946. This act know as the Federal Trademark Act defined a trademark as "any word, name, symbol, or device... used by a person...to identify or distinguish their goods... from those made or manufactured by others". • •Trademarks last for ten years and may be renewed by payment of a fee every ten years. • •The purpose of a Trademark is to avoid Consumer Confusion

3 Kinds of Agency Powers

•Legislative: Regulations, notice and comment •Executive: •Information gathering •Licensing •Recalls - also on agency webpages •Fines and warning letters •Judicial: ALJs (no jury, relaxed rules)

Can anything be trademarked?

•No. The Courts uses a distinctiveness continuum to evaluate the appropriateness of an item being trademarked. •1) Generic Not trademarkable •2) Descriptive Not trademarkable (Unless it acquires a secondary meaning) •3) Suggestive Trademarkable (E.g. Roach Motel) •4) Arbitrary or Fanciful Trademarkable (Exxon, Kodak)

PETA's Response

•PETA's general counsel, Jeff Kerr, said Monday that the opinion misses the point that Naruto "undeniably took the photos," and that denying him rights under the U.S. Copyright Act "emphasizes what PETA has argued all along—that he is discriminated against simply because he's a nonhuman animal."

Making a New Service Animal Rule

•Research need •Estimate cost •Draft new regulation •Notice in Fed. Reg. •Review Comments Finalize new rule

Trademark Dilution

•The Trademark Dilution Act of 1995 prohibits use of another's mark even in different industry if the use of the mark tarnishes the reputation or reduces the value of the original mark • •This was amended in 2006 . The Trademark Dilution Revision Act (TDRA) explicitly provides protection against both dilution by blurring and dilution by tarnishment. (Only a likelihood is necessary as opposed to the original act which required actual tarnishment)

Trade Secrets

•The Uniform Trade Secrets Act (UTSA) was promulgated as a model act in 1979 has been adopted by 47 states and the District of Columbia. •Under the UTSA, businesses can obtain both money damages and injunctions to prevent competitors from using secret information that has been wrongfully misappropriated, such as by industrial espionage. •Businesses may also be able to enjoin a former employee from departing to work for a competitor, if that employee would necessarily use or disclose trade secrets in the new position.

People for the Ethical Treatmentof Animals

•The organization (PETA) had tried to sue the photographer, David Slater, as a "next friend" of the monkey, a designation sometimes used for a third-party to sue on another's behalf. PETA's tie to the macaque, however, doesn't seem "any more significant than its relationship with any other animal," the Ninth Circuit found.

Fair Use Exception is a balancing factors

•The purpose and character of the use. (Educational vs commercial purpose) •The nature of the copyrighted work. (fictional receive greater protection than factual works) •The amount of copyrighted work which was copied •The effect on the market caused by the copying of the copyrighted work. •THERE IS NO RIGID FORMULA: If is a cumulative balance of these four factors.

Genericide

•The purpose of a Trademark is for the Mark to be easily recognized and associated with a given product or service. • •A phrase often heard from by Seller's of goods and services is that they want their product to become a household word. • •The problem is that IF the product's name becomes used as a description for all similar products of a given type it will loose its trademark protection. E.g.: Kleenex, Xerox, Coke.

Trademark

•The right to protect a word, name symbol or device used by a person to identify or distinguish their goods from that of another. •This right is the right to exclude others from using a trademark which once had previously established. • Even under the common law this right to protect one's identifying marks were recognized. The philosopher John Locke, in 1690 wrote, 'an individual could acquire rights in property to the exclusion of others by mixing his labor with it'.

Unusual trademarks

•The simplest type of mark is a word mark, consisting of words in nonstylized all-capital letters (e.g., Dunkin' Donuts). • •Trademarks may also consist of words combined with symbols, and can include specific fonts, colors, or sizes. • •In fact, almost anything that serves to distinctly identify the products or services of one company can be used as a trademark:

In step with the rest of the world

•Today in the United States the First person to file for the Patent owns the Patent. This system is followed with most other worldwide jurisdictions. • •BUT prior to 2011, the United Sates followed the First to Invent System. • •The cost to obtain a Patent is between $10,000 - $50,000 dollars plus attorney's fees. Additionallythere are maintenance fees to be paid every 3.5, 7.5, 11.5 years.

ToysRus

•ToysRus.com vs AdultsRus.com •Dilution found •ToysRus.com vs GunsAREus.com •Dilution found

Trademark Infringement

•Under Trademark law it is perfectly acceptable to have to companies in Different industries using the same mark. The reason behind this is that there is little to no likelihood of consumer confusion. Product Market and Geographic location are relevant in cases of evaluating consumer confusion. •Generally if consumer confusion exists then a case will be found for Trademark Infringement. • •Note consumer confusion is NOT required for Trademark Dilution (explained hereafter)

Global "Agencies"

•United Nations and its agencies •Int'l Labour Organization •World Intellectual Property Organization •UN Comm' on International Trade Law •World Trade Organization