Module 5- Law: Contracts, Intellectual Property, Employment, Liability, and Regulation

"At will" does not apply if the employment ____ ______ the circumstances by which an employee can be terminated or quit - legal action can be taken if the terms of the employment contract are breached. "At will" does not apply if the underlying motivation for discharge is based on _____ ______. Finally, "at will" does not apply if the employee is terminated because he or she refused to engage in an ____ activity supported by the employer.

"At will" does not apply if the employment contract stipulates the circumstances by which an employee can be terminated or quit - legal action can be taken if the terms of the employment contract are breached. "At will" does not apply if the underlying motivation for discharge is based on unlawful discrimination. Finally, "at will" does not apply if the employee is terminated because he or she refused to engage in an illegal activity supported by the employer.

A ____ __ _____ occurs when one party fails to perform any term of the contract. The consequences and remedies available for the aggrieved party depend on the ______ of the breach.

A breach of contract occurs when one party fails to perform any term of the contract. The consequences and remedies available for the aggrieved party depend on the materiality of the breach.

A _____ protects works of authorship, such as writings, music, and works of art that have been _______ expressed. _________ are registered under law and protection lasts for the life of the creator plus __ years. Copyright ________ is the use of copyrighted works without permission - generally infringement occurs when one is using the copyrighted material, without permission, for financial gain. However, the ___ ___ _______ permits limited use of copyrighted material without acquiring permission, such as students making a copy of a newspaper article to use in class.

A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed. Copyrights are registered under law and protection lasts for the life of the creator plus 90 years. Copyright infringement is the use of copyrighted works without permission - generally infringement occurs when one is using the copyrighted material, without permission, for financial gain. However, the fair use doctrine permits limited use of copyrighted material without acquiring permission, such as students making a copy of a newspaper article to use in class.

A _______ breach is a substantial breach of contract that usually excuses the harmed party from further performance and gives them the right to sue for damages.

A material breach is a substantial breach of contract that usually excuses the harmed party from further performance and gives them the right to sue for damages.

A _______ breach is less serious and pertains to a minor detail of the contract. The aggrieved party is not relieved of its duty to perform, but is entitled to damages.

A non-material breach is less serious and pertains to a minor detail of the contract. The aggrieved party is not relieved of its duty to perform, but is entitled to damages.

A _____ is a set of exclusive rights granted to an inventor for a _____ period of time in exchange for detailed public disclosure of an invention. Patents create a _____ ______ for the inventor during the term of the patent - 20 years from the date the patent application is filed. At the end of the patent term, the invention can be used in commerce by anyone. _____ ______ occurs when a patented invention is used without the permission of the patent holder.

A patent is a set of exclusive rights granted to an inventor for a limited period of time in exchange for detailed public disclosure of an invention. Patents create a natural monopoly for the inventor during the term of the patent - 20 years from the date the patent application is filed. At the end of the patent term, the invention can be used in commerce by anyone. Patent infringement occurs when a patented invention is used without the permission of the patent holder.

A ______ is a word, phrase, and/or design that identifies and distinguishes the source of the goods or services of one business from those of others. _________ do not have to be registered to be protected under federal law, but registration helps to prevent infringement on a company's mark.

A trademark is a word, phrase, and/or design that identifies and distinguishes the source of the goods or services of one business from those of others. Trademarks do not have to be registered to be protected under federal law, but registration helps to prevent infringement on a company's mark.

An employee acts on behalf of the employer and therefore the employer is _____ for the actions of the employee. If a _______, or a civil wrong, is committed "within the scope of employment" by an employee, both the employee and the employer are _____ to the aggrieved party.

An employee acts on behalf of the employer and therefore the employer is liable for the actions of the employee. If a tort, or a civil wrong, is committed "within the scope of employment" by an employee, both the employee and the employer are liable to the aggrieved party.

An ____ ____ is a civil wrong resulting from an intentional act on the part of the tortfeasor.

An intentional tort is a civil wrong resulting from an intentional act on the part of the tortfeasor.

_______ in the workplace occurs when an employer terminates or treats an employee differently with respect to the terms and conditions of employment because the employee is a member of a protected class

Discrimination in the workplace occurs when an employer terminates or treats an employee differently with respect to the terms and conditions of employment because the employee is a member of a protected class

_______ _____ sexual harassmentrefers to a situation where an employee is subject to a pattern of unwanted sexual behavior from other employees that creates a hostile and intimidating work environment. Employers cannot permit any harassment because they are ______ for the working environment of their employees.

Hostile environment sexual harassmentrefers to a situation where an employee is subject to a pattern of unwanted sexual behavior from other employees that creates a hostile and intimidating work environment. Employers cannot permit any harassment because they are liable for the working environment of their employees.

If discrimination is found the employer will be financially responsible for any _____ awarded by the court and all the ____ ___ involved in the proceedings

If discrimination is found the employer will be financially responsible for any damages awarded by the court and all the legal fees involved in the proceedings

If infringement is discovered, a business should take legal action by first issuing a ____ ___ _____ order. If this is not effective, the business should be prepared to bring a _______ against the offending party.

If infringement is discovered, a business should take legal action by first issuing a cease and desist order. If this is not effective, the business should be prepared to bring a lawsuit against the offending party.

_____ ______ relates to ideas - the intangible assets created or acquired by a business. The four types of intellectual property that can be protected include: ___ ____, _______, ______, and ______.

Intellectual property relates to ideas - the intangible assets created or acquired by a business. The four types of intellectual property that can be protected include: trade secrets, trademarks, copyrights, and patents.

Intellectual property rights are valuable to a business only if they can be _____ _______. To protect trade secrets, a company should require a contractual obligation, commonly referred to as a ____________ ___________, from an employee to not misappropriate trade secrets. To protect copyrights, patents and trademarks, a business should _______ the marketplace for any infringement.

Intellectual property rights are valuable to a business only if they can be legally enforced. To protect trade secrets, a company should require a contractual obligation, commonly referred to as a non-disclosure agreement, from an employee to not misappropriate trade secrets. To protect copyrights, patents and trademarks, a business should monitor the marketplace for any infringement.

____ _____ against a business include disparagement; intentional interference with contractual relations; patent, trademark and copyright infringement; theft of trade secrets; and palming off

Intentional torts against a business include disparagement; intentional interference with contractual relations; patent, trademark and copyright infringement; theft of trade secrets; and palming off

____ _______ can significantly deplete the financial resources of a firm. To mitigate the risks associated with liability claims, a business should ______ against any liability risks if possible. A business should manage liability risk as best they can through ______, _______, and _______ employees with improper behavior.

Liability claims can significantly deplete the financial resources of a firm. To mitigate the risks associated with liability claims, a business should insure against any liability risks if possible. A business should manage liability risk as best they can through training, supervising, and terminating employees with improper behavior.

__________ refers to the unauthorized use of the secret to the detriment, usually financially, of the business owner. A trade secret is generally _______ if the secret was acquired by improper means - _______, ______, _______, and _______ among others. However, others can ______ come to know a trade secret by _____ _____ the product or if the company makes the secret publicly known

Misappropriation refers to the unauthorized use of the secret to the detriment, usually financially, of the business owner. A trade secret is generally misappropriated if the secret was acquired by improper means - espionage, bribery, theft, and burglary among others. However, others can legally come to know a trade secret by reverse engineering the product or if the company makes the secret publicly known

Most contracts that are formed do not have to be in ______ or require a ______. However, there are specific exceptions when contracts must be in ______.

Most contracts that are formed do not have to be in writing or require a signature. However, there are specific exceptions when contracts must be in writing.

Once a contract is entered into all parties are _______ to perform their part of the bargain. Therefore it is important to do your homework before entering into any contract. This is the ___ _______ _______ and involves determining if the contract is ______ to you, if you can actually ____ ___ ____ of the contract, and if the contract is the ___ ______ out there for you in the marketplace. Failing to read the fine print of a contract is ___ _ ______ against the enforceability of the contract.

Once a contract is entered into all parties are obligated to perform their part of the bargain. Therefore it is important to do your homework before entering into any contract. This is the due diligence processand involves determining if the contract is favorable to you, if you can actually perform your part of the contract, and if the contract is the best opportunity out there for you in the marketplace. Failing to read the fine print of a contract is not a defense against the enforceability of the contract.

_____ ______ claims as a result of a design or manufacturing defect are generally included under strict liability.

Product liability claims as a result of a design or manufacturing defect are generally included under strict liability.

____ ___ ___ sexual harassment involves a superior or other employee demanding sexual favors from an employee in exchange for a job-related benefit

Quid pro quo sexual harassment involves a superior or other employee demanding sexual favors from an employee in exchange for a job-related benefit

_______ imposed on a business by an administrative agency are in fact laws. When congress passes an act or law, it enables the government to create an ______ to enforce that act or law. The agencies created by congress have rule making ability, and those rules are enforced by law. A business must comply with the regulations set forth by an administrative agency at both the _______ and ____ level. The expense associated with regulatory compliance is a cost of doing business.

Regulations imposed on a business by an administrative agency are in fact laws. When congress passes an act or law, it enables the government to create an agency to enforce that act or law. The agencies created by congress have rule making ability, and those rules are enforced by law. A business must comply with the regulations set forth by an administrative agency at both the federal and state level. The expense associated with regulatory compliance is a cost of doing business.

____ ______ in the workplace translates into gender discrimination. There are two types of sexual harassment: ___ ___ ___ sexual harassment and ______ __________ sexual harassment

Sexual harassment in the workplace translates into gender discrimination. There are two types of sexual harassment: quid pro quo sexual harassment and hostile environment sexual harassment

____ _____ is the legal responsibility for damages even if the person found strictly liable was not at fault or _______. Strict liability is commonly associated with businesses that engage in inherently ______ activities and with _______ manufactured products.

Strict liability is the legal responsibility for damages even if the person found strictly liable was not at fault or negligent. Strict liability is commonly associated with businesses that engage in inherently dangerous activities and with defectively manufactured products.

____ _____ torts refer to situations where a party is liable for injuries regardless of any precautions that were taken to prevent harm to others.

Strict liability torts refer to situations where a party is liable for injuries regardless of any precautions that were taken to prevent harm to others.

The employer's main defense against a discrimination case is that there was a _____ ____ _____ to terminate an employee. To prove this, the employer must keep well _______ employee files with respect to his or her ________.

The employer's main defense against a discrimination case is that there was a legitimate business reason to terminate an employee. To prove this, the employer must keep well documented employee files with respect to his or her performance.

The following are types ofcontracts that must be in writing: contracts that are _____ of ______ within one year of the contract being made, contracts involving ___ _____, and contracts involving the sale of goods of $___ or more. A general rule of the thumb should be to put in writing any contract one would deem to be important to him or herself. Having a contract in writing can avoid _____ between parties and also mitigate any legal risk associated with ___________ of the contract by either party.

The following are types ofcontracts that must be in writing: contracts that are incapable of performance within one year of the contract being made, contracts involving real estate, and contracts involving the sale of goods of $500 or more. A general rule of the thumb should be to put in writing any contract one would deem to be important to him or herself. Having a contract in writing can avoid confusion between parties and also mitigate any legal risk associated with nonperformance of the contract by either party.

The nature of employment law is that the relationship between the employer and the employee is an "___ ___ legal relationship. "__ ____" means the employer can terminate an employee at any time for no cause. Likewise, an employee can quit at any time for no cause.

The nature of employment law is that the relationship between the employer and the employee is an "at will" legal relationship. "At will" means the employer can terminate an employee at any time for no cause. Likewise, an employee can quit at any time for no cause.

The term _______, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed to another. ______ involves harm caused by carelessness, not intentional harm.

The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed to another. Negligence involves harm caused by carelessness, not intentional harm.

There are four elements a contract needs to become enforceable. For a contract to be valid there must an _______ between all parties involved, ___________ must be transferred between parties, the subject matter of the contract must be ______, and all parties involved must be ________.

There are four elements a contract needs to become enforceable. For a contract to be valid there must an agreement between all parties involved, consideration must be transferred between parties, the subject matter of the contract must be legal, and all parties involved must be competent.

There are four steps involved in proving negligence: the person being sued owed a ____ of ____ to the person who is suing; the defendant ______ __ ___; the breach of the duty was both the ____ and _____ cause of harm or damage to the plaintiff; and the plaintiff suffered ______ and/or damage. All four steps must be proven in a negligence case for the defendant to be held liable.

There are four steps involved in proving negligence: the person being sued owed a duty of care to the person who is suing; the defendant breached that duty; the breach of the duty was both the actual and proximate cause of harm or damage to the plaintiff; and the plaintiff suffered injury and/or damage. All four steps must be proven in a negligence case for the defendant to be held liable.

_____ ______ are the least complex form of intellectual property. A ____ _____ is business information that is not readily known to people outside the business - for example, a recipe or a customer list. ____ _____ can become property, and therefore subject to state law, to the business if the owner maintains efforts to maintain the secrecy of the information. _____ _____ are not registered with a government office; however, business owners can still seek legal action against individuals who misappropriate the ____ _____.

Trade secrets are the least complex form of intellectual property. A trade secret is business information that is not readily known to people outside the business - for example, a recipe or a customer list. Trade secrets can become property, and therefore subject to state law, to the business if the owner maintains efforts to maintain the secrecy of the information. Trade secrets are not registered with a government office; however, business owners can still seek legal action against individuals who misappropriate the trade secret.

______ _______ occurs when another entity creates a trademark that is confusingly similar to another brand. An entity also cannot dilute a famous trademark, for example a piano manufacturer cannot brand its pianos "Lexus Pianos." A trademark has no term _______ and is protected for as long as it is used in commerce.

Trademark infringement occurs when another entity creates a trademark that is confusingly similar to another brand. An entity also cannot dilute a famous trademark, for example a piano manufacturer cannot brand its pianos "Lexus Pianos." A trademark has no term limitation and is protected for as long as it is used in commerce.

Types of torts that an employer can be held liable for include ______ torts, ______, and ____ _____ torts.

Types of torts that an employer can be held liable for include intentional torts, negligence, and strict liability torts.

Under Title ___ of the Civil Rights Act of 1964, the following characteristics are considered protected classes: race, color, gender, religion, and national origin. Other protected classes include age (older workers) and people with disabilities. Theremust be a _______ business reason to terminate an employee. Discrimination occurs if the underlying reason for termination is because the employee is a _____ of a _____ _____.

Under Title VII of the Civil Rights Act of 1964, the following characteristics are considered protected classes: race, color, gender, religion, and national origin. Other protected classes include age (older workers) and people with disabilities. Theremust be a legitimate business reason to terminate an employee. Discrimination occurs if the underlying reason for termination is because the employee is a member of a protected class.

Under the ____ ___ ____ the law states that an offeree's acceptance of an offer must be unequivocal and be a mirror image of the offer. An attempt to accept the offer on different terms creates a _______ and the original offer is ________.

Under the mirror image rule the law states that an offeree's acceptance of an offer must be unequivocal and be a mirror image of the offer. An attempt to accept the offer on different terms creates a counteroffer and the original offer is terminated.

contract

a binding agreement between two or more parties

intentional tort

a civil wrong resulting from an intentional act of the defendent

tort

a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the wrongful act

Restatement of Contracts

a complication of the general principles of contract common law

implied in fact contract

a contract agreed upon by non-verbal conduct (actions), rather than by explicit words

express contract

a contract in which all elements of a contract are specifically state, either orally or in writing

valid contract

a contract that complies with all the essentials of a contract and is binding/enforceable on all parties

manufacturing defect

a defect in a product resulting from a departure from its design specifications during prodcution

assumption of risk

a defense in the law of torts that reduces a plaintiff's right to recovery is the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks associated with the activity at issue

disparate impact

a discriminatory employment practice that has greater impact on one group over another

disparate treatment

a discriminatory employment practice when an employee is treated differently than other employees who were in a similar situation

trademarks

a distinctive mark or future that is particularity characteristic of or identified with an entity, product, or brand

Administrative Procedures Act (APA)

a federal statue that governs the way in which administrative agencies of the government of the United States may propose and establish regulations

due process of law

a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's rights

implied warranty

a guarantee that the item sold is merchantable and fit for the purpose intended. An implied warranty is in addition to an express warranty provided at the time of sale to protect consumers who might otherwise pay for products that are not as represented by the merchant

administrative law judge

a judge who both presides and issues judgment over the claims and disputes involving administrative laws and agencies

vicarious liability

a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship (ex. the employer-employee relationship) to the person who did act negligently

strict liability

a legal doctrine that makes a person/company responsible for their actions or products which causes damages regardless of any negligence or fault on their part

respondeat superior

a legal doctrine which states that an employer is responsible for the actions of the employees performed within the course of their employment

duty

a legal obligation that entails mandatory conduct/performance

business necessity

a legitimate business purpose that justifies an employment practice as valid and necessary for the business

failure to adequately warn

a party will be held liable for injuries caused to another, where the party had the opportunity to warn of any dangers of the product but failed to do so

design patent

a patent that offers protection for the way a product looks

utility patent

a patent that protects the way an invention is used and works

design defect

a problem with the product's design that makes the product inherently dangerous or useless, even if it is manufactured perfectly with the best quality materials

intellectual property

a property right that can be protected under law. It is characterizes as non-physical property that is the product of original thought

Uniform Commercial Code (UCC)

a set of suggested laws concerning commerce with the intent to provide uniformity across states in order to simplify business activity

express warranty

a verbal/written statement that guarantees that a product is of certain quality or will work in a certain way or for a certain amount of time

mutual assent

an agreement by both parties to enter into a contract

patents

an exclusive right granted by law to an inventor to make, use, and sell an invention for a limited period of time- 20 years from the date the patent application is filed

tortfeasor

an individual who commits a wrongful act that injures another and the law provides a legal right to seek relief

trade secrets

any type of business information that is proprietary in nature and gives the business a competitive advantage

proximate cause

determining whether or not an event is sufficiently related to an injury to be held as the cause of that injury

bona fide occupational qualification

employment qualifications that employers are allowed to consider while making decisions about hiring and retaining employees

negligence

failure to use reasonable care, resulting in damage or injury to another

deep pockets theory

in tort law, employers will often be held liable for the actions of a negligent employee. Since employers usually have more money than the employee to pay for negligence, they would be in a better position to pay the victims

disparagement

intentionally making false statements about the quality or ownership of someone's goods

palming off

misrepresenting someone else's goods or services as one's own business

quid pro quo sexual harassment

occurs when a more senior manager or employs demands sexual favors in exchange for some workplace benefit

breach of duty

occurs when one person/company has a duty of care owed towards another person/company but fails to live up to that standard

hostile environment sexual harassment

occurs when supervisor or other employee makes sexually suggestive comments, gestures, advances, pictures, text, touch, or humor that unreasonable interferes with work performance

legal detriment

one part of a contract doing something that they re not required to do. Giving or promising performance when they are not obligated to

legal benefit

one party of a contract gaining something to which he/she would not otherwise be entitle in the absence of an agreement

fair-use doctrine

permits limited use of a copyrighted material without acquiring permission from the rights holder

actual cause

referes to a cause or action without which the event could not have occurred

failure to adequately package

related to a duty the manufacturer has to package products in an appropriate and safe manner for the consumer

consideration

something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances

capacity

the ability to understand both the nature and consequences of one's acts

product liability

the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause

infringe

the encroach upon in a way that violates law of the rights of another

copyright

the exclusive rights to reproduce, publish, sell, or distribute the matter and form of an artistic effort

federal register

the official publication for rules, proposed rules, and notices of federal agencies and organizations, as well as executive orders and other presidential documents

offeree

the person to whom an offer is made to enter into a contract

offeror

the person who extends an offer to another to enter into a contract

reverse engineering

the process of taking apart an object to see how it works in order to duplicate the object. It is legal to acquire a trade secret through reverse engineering

mirror image rule

the requirement that a contract be accepted exactly as it is, without modifications

legality

the state being in a accordance with the law

novelty, utility, non-obviousness

the three criteria that must be met in order to qualify for patent protection

misappropriation

the unauthorized use of another's name, likeness, or identity without permission, resulting in harm to that entity

ratify

to confirm or honor a contract

disaffirm

to revoke or deny a contract

sexual harassment

unwelcome sexual advances, requests for favors, and other verbal/physical harassment of a sexual nature

breach

when one party does not performa s promised in a contract