Bus Law 301

2-306: Requirements/outputs contract

Question: How much can the seller force the buyer to take (output)? How much can the buyer demand (requirements)? 1. Quantity established in good faith (the buyer had a legit reason for reducing/eliminating its requirements as opposed to a desire to avoid the contract) 2. Quantity cannot be unreasonably disproportionate (to an estimate of quantity if included in contract, to historical dealings if not in contract)

Distinctiveness continuum

Strongest 1) Fanciful - Exxon 2) Arbitrary - Apple 3) Suggestive - 4) Descriptive Weakest If merely descriptive, cannot be protected as a trademark until it acquired secondary meaning by demonstrating... 1) long and exclusive use (5yr w/o anyone else using the name) 2) Extensive sales and promotion 3) Customer survey evidence 4) Other convincing evidence

Trademark dilution

protect "distinctive" or "famous" trademarks from certain unauthorized uses even when the use is not likely to cause confusion Requirements: Fame and distinctiveness (inherent or acquired) 1) Blurring - use causes public to no longer think of the good but to think of the new product. Ex. Lexus pianos 2) Tarnishment - use that is in an unwholesome manner or for a poor quality product

Language to use in actual cause/proximate cause

There is actual cause with respect to the losses sustained as a result of the negligent act. There is proximate cause as to XYZ because it was reasonably foreseeable that the negligent act would result in harm to Jane Doe in proximity to the accident.

2-205: Firm offers by merchants

Typically offers can be revoked, EXCEPT where the offer is a firm offer by a merchant Elements of a firm offer: -Offer by merchant to buy or sell goods -In writing, signed -Stating offer is open for a specific time (not stated, open for 3 mo & NOT revocable for that time)

What applies under UCC, what doesn't?

Yes- goods, personal property large or small No-immovable like a house, real estate, leases, employment, services, construction

Four elements of negligence

1. Duty of care 2. Breach of care 3. Proximate cause (causation) 4. Injury suffered (damages)

General approach to intellectual property

1. How is the property interest created? 2. How is the property interest violated/infringed upon? =>misappropriation, infringement

Remedies for misappropriation

1. Injunctive relief 2. Damages 3. Prosecution

Job of the judge and jury in a negligence case

1. Judge - duty, proximate cause, injury suffered 2. Jury - breach of duty, actual cause, allocation of negligence, compensation for injury (must be agreed by 5/6 of the jury) Note: Wisconsin is a blindfold state, jury is unaware of legal consequences of verdict

How to offer - contract

1. Must manifest contractual intent: "I offer" (not an invitation "do you think X is a fair price") 2. Must be communicated to offeree 3. Must be definite and certain enough (negotiate to fullest extent, the rest will gap fill

What are proper means of acquiring a trade secret?

1. Obtain information from published materials 2. Reverse engineering 3. Public use / disclosure by owner 4. Independent invention

Joint and several liability

1. Several liability: recovery limited to % fault assigned to that defendant 2. Joint and several - each defendant can be held liable for all losses suffered by the plaintiff 3. Tort reform - a defendant can only be held liable for the full amount owed to the plaintiff if the defendant's liability exceeds a certain percentage [51% in Wisconsin]

Res ipsa loquitur

"the thing speaks for itself" MUST meet these elements: 1) Control - defendant had control over the circumstances surrounding the event 2) Cause - Event would not have occurred in the absence of negligence 3) No explanation - No other reasonable explanation for the event offered by the defendant [Shift burden to the defendant]

Mutual assent

An offer and acceptance which together form the terms of a contract. "meeting of the minds" Contractual intent: objective (reasonable person) test Does not have to be spoke, does not have to be written

Trade symbols definition

A form of identification used to identify good in the marketplace. a) trade mark b) service mark You can trade mark sounds

Copyright First Sale Doctrine

Once you buy the work you can sell it to someone else as long as you didn't make copies Except: streaming songs, then you need license, software, then you need license

What constitutes infringement of a copyright?

when someone exercises the copyright owner's rights without authorization: right to 1) reproduce copies 2) prepare derivative works 3) distribute copies of the work 4) perform or display public works Ask if there is "substantial similarity" Consider -use (commercial?) -Nature (arts fit nicer into copyright category -Amount (how much copies) -Effect (does it impair the market)

How to accept - contract

1. Can only be given by offeree 2. Must be unequivocal "I accept" 3. Must be unconditional (cannot be "I accept provided" or "subject to") *mirror image rule*

How are property rights created - Trade symbols

1. Common law rights acquired through usage 2. Registration under the Lanham Act

Negligence per se

1) A statute exists and was violated by defendant 2) The statute intended to give protection against harm that was incurred 3) The plaintiff is a member of the class of people intended to be protected by the statute If these three are met, then Duty of Care, and Breach of Duty of Care have been established.

How is a property interest violated - trade marks

1) Improper acquisition ex. industrial espionage, theft, bribery 2) Improper disclosure a) Disclose a trade secret that you acquired from someone you knew or ought to have known acquired it through improper means b) You disclose or use a trade secret of your employer even though you signed a confidentiality agreement c) you disclose or use a trade secret you acquired by mistake or accident of the trade secret owner

2-207: Different/additional terms Flow Chart

1) Is this a contract for the sale of goods? UCC must apply 2) Acknowledgment that there may be a contract formed even though the acceptance involved different or additional terms 3) Does the acceptance state that it is expressly conditional on acceptance of the different or additional terms Terms like "Provided that" "Only if." If so, the acceptance is a counteroffer so no contract based on the documents 4) If the acceptance does not include the expressly conditional language then a contract is formed. That is true regardless of whether there are different or additional terms 5) DIFFERENT TERMS: If terms are different, they knock each other out and we gap fill 6) ADDITIONAL TERMS: Are one or both of the parties merchants? Only one merchant or no merchant, then the additional terms are just proposals of contract unless accepted 7) MERCHANTS? If both parties are merchants then the additional terms are part of the contract unless... -The offer stated no additional terms would be part of the contract -The additional terms materially alter the contract -The offeror objects within a reasonable time

2-206: Prompt shipment contract

1) Offeror (Buyer) sends an offer asking for goods to be shipped promptly, current shipment, or immediately 2) Seller has an option to accept offer by... - Prompt promise to ship - Accept by shipping conforming goods - Send non-conforming goods *As an accommodation *Must give buyer notice of accommodation (fail to do this, you're accepting and breaching)

What can be copyrighted?

1) Original works of authorship (requiring only a modicum of creativity/originality), 2) fixed in a tangible medium 3) that you own (E.g., books, songs, drawings, outline for a movie script) Right lasts for authors life + 70 yrs

Limitations on the existence of proximate cause (public policy limitations on liability for a negligent act) + Wisconsin public policy considerations

1) Unforeseeable consequences or unforeseeable plaintiff 2) Superseding cause - third party's intervening relieves the first actor from liability -Injury too remote -Injury out of proportion to negligence -In retrospect, it appears extraordinary that negligence caused the harm -Unreasonable burden on defendant -Lead to fraudulent claims -No sensible or just stopping point if claim is allowed Liability is the rule, relief for public policy decisions is the exception

Employee rights in trade secrets

1) Utilization of personal knowledge unless a contract provision prohibits such use 2) Trade secrets which obviously can't be used by former employees 3) Confidential information of the employer - required not to disclose 4) General business information, not protected without a confidentiality agreement

Terminating an offer

1) lapse of time "reasonable" 2) offer has explicit duration 3) death or destruction of subject matter 4) death or legal incompetency of offeror or offeree 5) subject matter becomes illegal 6) Revocation of offer prior to acceptance Acceptance of options contract cannot be revoked!

Grounds to refuse a mark

1) likely to cause confusion with existing mark 2) merely descriptive 3) dilutes a famous mark 4) functionality doctrine 5) Name, portrait, or signature of a living person w/o their consent 6) Deceptive mark 7) opposition by members of the public

Patent requirements

1) new/novel 2) not obvious 3) has utility/function -First to file rule (has the patent) -One year rule (cant file if more than one year before the patent was filed the invention was in use)

Fair use exceptions to copyright infringement

1) public debate 2) public education 3) parody 4) transformative Consider:

Fair use defense for trade symbols

1) use in news 2) legislative proceedings 3) comparative advertising 4) parody 5) criticisms or commentary

Elements necessary to have an enforceable contract

1. offer/acceptance 2. competent parties 3. consideration 4. legal subject matter or object

Trade secret definition and elements

A commercially valuable business secret that is not common knowledge Three elements: 1. Information that derives independent value from not not being generally known... 2. which is not readily ascertainable by proper means 3. And there are efforts to maintain its secrecy that are reasonable under the circumstances

Special Duty Rules

A) Duty owed by land owners to entrants on land: 1) Trespassers (lowest): property owner liable to the trespasser only for intentional acts (except with children and attractive nuisance situations) 2) Licensee (middle): E.g. social guests, property owner is responsible to warn of hidden dangers of which the owner knows ONLY IF they should expect that they will not discover the danger on their own "Reasonably expected them to notice the dangerous condition" 3) Invitee (highest - safe place doctrine): E.g. public place or business, responsible to warn of any dangers known or that ought to be known "Duty to use ordinary care in providing a safe place"

Strict liability

Absolute liability of defendant regardless of the level of care exercised by the defendant E.g. mining explosion, tiger at the zoo jumping out of the cage

When are acceptances, revocation, rejection

Acceptance - dispatch (as long as sent correctly) Revocation - receipt Rejection - receipt

Addt'l Special Duty Rules

Addt'l B) recreational conduct: reckless or with intent C) negligence of manufactured goods: ordinary care D) "Baseball Rule": knowingly exposed to risk D) Immunity statutes: Land provided for recreational use / good faith - emergency care

Quasi Contract

An equitable remedy to avoid unjust enrichment 1) A benefit was conferred by one party to another 2) Appreciation or knowledge of benefit by person receiving benefit 3) Acceptance or retention of benefit under the circumstances would be unjust

Proximate Cause

Did the defendant's conduct actually cause the harm, and was it the proximate cause of the harm? **Determining actual cause: 1) "But for" test: would the event have occurred but for the defendant's conduct? 2) "Substantial factor" test: was the defendant's conduct a substantial factor in causing the event? **Determining proximate cause 1) Foreseeability test: either immediately, or thereafter

The second element of a trade secret: Derives independent value from not being known

Consider: 1) The extent to which the information is known in and outside of the organization 2) The amount of money spent to create it 3) To what extent does the information create a competitive advantage Note: trade secret may consist of separate pieces of information that, when compiled, constitute a unique competitive advantage Note: A trade secret that is the product of an employee's assigned duties is owned by the employer even when the trade secret results from the application of the employee's personal knowledge or skill

Duty of Care

Did the defendant owe plaintiff a duty to be non-negligent? If so, what is the scope of that duty? A duty is owed to the plaintiff if the consequences resulting from the defendant's negligent conduct ought to have been reasonably foreseeable by the defendant. **FORESEEABILITY TEST

The third element of a trade secret: There are reasonable efforts to maintain secrecy

Depends on the situation 1) Physical security ex. procedures, badges 2) Develop a document handling policy ex. shredding, "confidential" 3) Executive education ex. confidentiality policies 4) Non-disclosure & confidentiality agreements 5) Implement appropriate hiring and firing procedures ex. background checks 6) Restrictions regarding computer stored trade secrets ex. firewall protection

Registration under the Lanham Act

General concepts regarding the Lanham Act 1) Use provides protection under the law - but registration gives additional protection from and remedies for infringement 2) Mark must be "affixed" to the goods or "used in connection with the goods" 3) You must continue to use the mark -intent not to resume use may be inferred from the circumstances -non use for 3 continuous years is abandonment What the act provides in terms of protection: 1) constructive notice - ppl know its yours 2) Use of R (vs unregistered TM) 3) Customs bureau protects against imports that bear the mark 4) presumed evidence of right to use the mark 5) Right to use federal court to enforce the mark (moves faster) 6) After 5yr of use, the mark becomes incontestable (can renew mark after 10 yr w/o limitation)

When does infringement occur- trade symbols

If there is confusion, essentially 1) similarity between marks in apperance and suggestion 2) Similarity of the products 3) Area & manner of concurrent use 4) degree of care likely to be exercised 5) strength of a mark 6) actual confusion 7) intent of the defendant to "pawn off" his product as that of another

The first element of a trade secret: Information

Information which is used in one's business and gives opportunity to obtain an advantage over competitors who do not know or use the information Ex. - Formula -Pattern -Program -Technique -Compilation -Method -Process -Device

Comparative negligence

Jury allocates 100% blame across plaintiff and defendant. [Note: Many states do not allow a plaintiff to collect if their own negligence exceeds that of the defendant] Types of law 1) ANY contributory negligence of the plaintiff prevents recovery (rare) 2) Pure comparison - recovery strictly governed by a % of fault (rare) 3) Modified comparison - plaintiff does not recover if their negligence % exceeds that of the defendant, but recovery is otherwise governed by % fault assigned by the jury (most common)

Generic mark

Not protectable trademarks. - Mark answers who are you, not what are you How to avoid "genericizing" a mark 1) Never use as a noun or verb 2) Distinguish with mark TM R 3) Monitor third party usage

Gap filling rules

Price: reasonable price at time of consideration Place for delivery: sellers place of business Time: reasonable time Time for payment: payment at delivery

Breach of Duty of Care

The act of negligence, must display reasonable conduct. **Did the defendant receive a grade of C or higher?

Language to use in the explanation of duty of care

The duty of each person is to exercise ordinary care to refrain from any act which will cause foreseeable harm to another and to refrain from any act which creates an unreasonable risk to others

Language to use in the breach of duty of care

The standard of conduct a reasonable man of ordinary prudence would have exercised the given situation

Exception to the mirror image rule: 2-207: Different/additional terms

Was the acceptance made expressly conditional? IF yes, acceptance is really a counter offer. If they act as if they have a contract, performance evidences the contract. Then they are contractually bound. Different terms knock out and gap fill. If both parties are non-merchants - additional terms are only proposals for additions to the contract and both parties must agree If both parties are merchants, the additional terms automatically become part of the contract unless they are excluded under certain conditions set forth.

Damages/Harm/Injury

Was the plaintiff harmed?

Merchants

What is a merchant? 1) One who deals in goods of the kind; or 2) One who holds himself out as having knowledge of or skill peculiar to certain goods or practice Merchant must be honest AND reasonable when in sale of goods Certain warranties included in the sale Recourse if goods don't work for ordinary purpose (warranty)

Negligence defense

assumption of risk, statute of limitations (wisco says actions must be commenced within 3 years)

Copyright registration

don't need registering (automatic protections)