MGT 341 Exam 3

Remedies for patents

What if someone infringes on your patented item? You can sue in federal court sue in federal court and it includes an injunction and it include damages and even attornies' fees

Under the Uniform Commercial Code (UCC), when a contract for the sale or lease of goods is silent about the payment, the:

payment is due at the time and place at which the buyer is to receive the goods.

Statutory protection pt 2

Water Pollution Regulation - Big deal. Waterways have always been a dumping ground for years. We have runoff issues too.

Process and Notice for patents

-File patent with Trademark and Patent Office in DC. This is time consumer and you have to hire a patent attorney who is special and cost more money because they have to take a special exam. If no other patent exists, they will file yours. -You will get a patent number and that's how you know it is protected. Holder of the patent has the right to use it however they way. Patent holders have exclusive rights.

Exceptions (Contracts that don't have to be in writing)

-If you are dealing with specifically manufactured goods, then it doesn't have to be in writing. - If the parties admit that there was a contract they agreed. Partial performance - Partial payment, excepted goods, sent goods, etc. Paid in full or in part... Evidence that the agreement existed.

Options (if nonconforming goods are delivered)

-The buyer could still accept (Ex- It's the wrong color but that doesn't really matter) -The entire shipment could be rejected -Could accept in part and reject in part

Protection of copyright

1. International - The burn convention gives protection. Right a copyright holder - exclusive right to use the work, distribute copies, etc. You can assign it or license it for payments.

Statutory Protection for Environ

1. Air Pollution Regulation a. Clean Air Act - CAA and all of its amendments contain the first real authority when it comes to air pollution. EPA est air quality standards and then the states are supposed to implement plans to achieve those standards. Amended periodically. Practical because technology is getting better and better. b. Goal - To reduce airborne pollutants. Where from smog, acid rain, ozone pollutants, etc. Used to be that big business mist affected, but all businesses are affected. Local stores have to follow these too! c. Penalties - Civil sanctions --> citations and fines up to $25,000 a day and even small violations like record keeping violations could be up to $5000. These get the attention of businesses. Criminal --> Up to 2 years for false statement or failing to report violations etc. Willful violators up to 15 years in prison and fine up to $1mil. Rewards offered if people help the case.

Scope of the UCC (Uniform Commercial Code)

49 states adopted this except Louisiana only accepts some of it. Always check yours state's code. Uniformity - Uniform contrats for the sale of goods so when crossing state lines it would be more efficient. Article 2 - Deals with contracts for the SALE of goods Article 2A - Deals with contracts for the LEASE of goods

For contracts involving a sale of automobiles, which of the following individuals will be held to a higher standard of behavior under the Uniform Commercial Code (UCC)?

A dealer of pre-owned cars.

Buyer's obligations

Acceptance/payment - If goods conform, you should accept them and pay for them. You could revoke acceptance of non conforming goods if their was a reason for acceptance at first. Ex - Non conformity couldn't be revealed thru normal inspection

Liquidated Damages

According to the UCC, a court can enforce a liquidated damages clause if it's reasonable and not punitive. Liquidated damages --> predetermined amount in the even of breach. In the event of breach - breaching party pays non breaching party X amount of $. They can be expensive.

Article 2

Applies to all buyers and sellers Sale - Passing of title from a seller to a buyer for a price. Goods - Tangible/moveable thing that physical exists. Not goods --> Stock, land, intellectual property Can have a mixed sale with tangible and intangible goods, and whatever is the predominant nature governs usually.. If the bulk of the contract is for --> UCC Governs If the bulk of the contract is for services --> Common law governs

Contract formation

Agreement - Meeting of the minds, 1 party makes an offer and the other party accepts that offer. Consideration - Bargained for legal value. What we give up for what we receive. Capacity - Are you sane, sober, and of age? Age and mental capacity. Do you understand and appreciate what you are getting yourself in to? Legality of purpose - Contract has to be for a lawful purpose. Has to be lawful in the execution of the contract and lawful as it relates to the subject matter of the contact. If it is not, it is a void contract. Ascent - Back to the meeting of the minds. Are the parties agreeing on the same thing? If there is an allegation made of fraud, mutual mistake, duress, undue influence ... that is where you discuss assent. Back to --> Are the parties agreeing on the same thing?

A trade secret protects all but which of the following?

An original idea

Formation of Contract

Any manner that shows an agreement works. UCC was designed with flexibility in mind for commercial practices. Makes it more workable for business purposes. It's okay if certain offer terms are left out.

Concepts

Are we going to protect the environment at all costs? What is the impact on the future? Proving causation is an issue, do we really know what is contributing to these problems? Who is going to pay for this protection? Landowners, investors, the businesses themselves? Politics --> Some administrations are more interested in the environment than others. Also depends on how the economy is doing.

Environmental Groups

Around the 70's --> Environ activists (grass root orgs) started the movement that led to an increase protection for our environment

Performance and obligations Intro

Basic principles in the UCC that buyer and seller have. We want to look to the contract first and that will govern behavior. Also, custom in that industry. Seller/lessor required to deliver performing goods, buyer/lessee is required to accept goods and pay.

Stop Delivery

Buyer breaches and goods are in transit, they can be stopped. Carrier can stop any size shipment if the buyer is insolvent. only a large shipment can be solved if the buyer is solvent and just don't have all of the money. Reclaim the goods in a lawful manner.

Under the Uniform Commercial Code (UCC), which of the following statements is true of the remedies available to buyers and lessees when a seller or lessor breaches a sales contract?

Buyers or lessees are allowed to accept nonconforming goods and then seek monetary damages to give them the benefit of the bargain.

Buyer Remedies

Cancel - Cancel contract, thought of as last resort. If you're the one claiming the breach occurred, you have to prove it. Cover- Buyer can purchase substitute goods and sue the seller for the difference in price. Allowed if everyone is acting in good faith, and a reasonable amount paid for substitute goods, no reasonable delay in purchasing substitute. Damages - Sue of incidental (transport/phone call costs)

Marks ...

Cant register marks that are deceptive if its similar to another mark, if it's immoral. Geographic terms generally not registrable. Exception - Philadelphia creme cheese Names can be registered if they have secondary meanings. Color might be registrable if it relates to the company but doesn't affect quality just a source identifier.

Sources of law for contracts

Common law - Judge made law, contract involving LAND and SERVICES Uniform commercial code - Contracts involving goods or the lease of goods

Intellectual property includes all but which of the following?

Company's client list

Intellectual property

Consists of the fruit of one's mind. Usually mental creativity, not so much physical effort. Rights help them keep the rewards of what they created to themselves.

All but which of the following determines the obligations of sellers/lessors and buyers/lessees?

Constitutional law.

Types of leases

Consumer - Deal with personal, family, or household items. Usually value less than $25,000. Lessor engaged in the leasing of these items. Lessee using these goods NOT for business use. Finance - Similar, just adding in a third party like a finance company

Solid Waste Disposal

Control garbage and dumping of garbage. There used to be a fear that we weren't going to have a place to put trash but now there is plenty of land and recycling became a thing.

Cancel contract

Could cancel the contract. Most often, the seller/lessor has to notify the buyer that they have canceled and then if they have any damages they could file a lawsuit.

Clean Water Act

Created and passed in 70's ish - It transferred water pollution regulations form the state to federal control. EPA regulates a factory (or whatever) to get a permit before they are allowed to discharge waste into a waterway. Process not easy...

Merchants

Deals in goods of a kind. They have a certain level of knowledge/skill/expertise as it relates to these goods. Merchants are often held to a higher standard, they have different rules.

Article 2A

Deals with the lease of goods Lease - Transfer of the right to possession and use goods for a term in return for consideration. Lessor - Person who transfers the right to possession and use. Lessee - Person who acquires the right to possession and use

Copyrights

Definition - Protect the expression of creative ideas Ex- Books, periodicals, musical composition, plays, motion pictures, sound recorders, lectures, computer programs, works of art, etc. Fixed form is what is protected, not the idea itself. If you have copyright, you have the exclusive right to use.

Patents

Designed to protect inventions, machines, products, and processes. Set forth in the constitution

Requirements of the National Environmental Policy Act

EIS - Environmental Impact Statement filed with the EPA. When? Who? Any governmental agency if they are involved in an action that has a significant impact on the environment. Any agency action, legislation, federal action that has significant effect) Content - The perceived impact of the environment of this legislation. Also, include all alternatives, adverse effects, and resource use.

Safe Drinking Water Act

EPA sets standards for contaminant levels in our drinking water. Usually states responsible for enforcing it, but it has to at least meet federal standards

Inspection

Failure to inspect, you could forfeit your ability to complain. Before you accept, you must inspect the goods. -Reasonableness - Reasonable time, place, etc.

Environmental Quality Regulation

Fed Gov in 1969 passed the national environmental policy act. It was a general commitment by the fed gov to a clean and healthy environment. How the government regulates itself. Gov realized that when it comes to an environment impact, it has a large effect. They passed this piece of legislation to regulate themselves.

Other regulations

Federal law with surface mining Noise control (low flying aircraft) Pesticides Even Ocia Endangered Species Act - Habitat of species on the list cannot be disturbed. This brings up opinions about costs and benefits of this act.

Toxic substance control act

Federal legislation that allows the EPA to control the manufacturer, use, and disposal of toxic substances. Legislation indicates what exactly is a toxic substance and then it will regulate how they are used and disposed of. Environmental law is very in depth and scientific.

Fair Use Doctrine

First amendment is reserved by the fair use doctrine. Material can be reproduced for teaching purposes. Exceptions for research also. FUC allows for infringement of protected material.

Laws and regulations (Environ Law)

Government takes some free market principles (tax credits) Pollution is a negative externality. Ethical perspective --> Some companies are more concerned about pollution than others

Trade secret protection

If breached, there will be a re course in a courtroom.

Seller remedies

If the buyer breaches (non payments or acceptance)

Withheld Delivery

If the buyer has breached and not paid, they can withhold the goods.

Parol Evidence Rule

If the parties are going to put their agreement in writing, then the court doesn't want to consider any other evidence to prove or disprove the contract. -Under UCC - there are exceptions to this, the court could look at the course of dealing, have these parties done dealing in the past, what's custom to this trade? Etc...

Abandonment

If you allow others to use mark without saying anything about it, that could cause you to lose the protection that you have, it will lose it's exclusive character. You have to protect your mark and be proactive.

Oil Pollution Act

In response to a lot of the oil tanker spills in the 80's, a 5 cent tax is placed on every barrel of oil and it goes into a fund that pays for a spill if the responsible party can't pay to clean it up. Applies to all navigable waterways up to 250 mi from shore. Civil/criminal punishments for violating any of these acts. Fines/shutdowns happen if they can't follow rules.

Process for a mark

It can be accepted to the register - you have the exclusive right to use that right for 5 years from the date or registration. (Incontestable for 5 years) After 5 years, it has to be renewed. After that it's once every 10 years. In 2003, US became part of the Madrid protocol, extends protection to other countries in the Madrid Protocol

Which of the following statements is true of a consumer lease?

It is a lease that exists between a lessor regularly engaged in the business of leasing or selling and a lessee who leases the goods primarily for personal purpose.

Which of the following statements is true of copyrights?

It is only the expression of an idea that is protected by copyright law, and not the underlying idea.

Protection of patents

It needs to be a new and not obvious invention International - The Paris Convention gives you international protection (Countries part of the Paris Convention)

A patent can protect all but which of the following?

It protects an obvious alternative use of a product.

All but which of the following qualifies as a good under the Uniform Commercial Code (UCC)?

Land

Marks

Latham Act. Federal legislation and it gives mark protection Definition - Any word, name, symbol, design, device, picture, or combo of all of the above to identify a particular product or service. Marks tend to cause a consumer to identify that product with that certain producer. Could even be a melody. Ex - Nike swoosh, golden arches, I'm lovin' it, etc

EPA

Leads the way. Has power to impose sanctions and fine violators. Can get junctions to shut factories down if they aren't in confluence. (EPA mostly civil in nature)

Under the UCC, which of the following statements regarding liquidated damages is accurate?

Liquidated damages must be identified before the breach occurs by the parties.

All but which of the following items is treated as a good under the UCC?

Minerals or clay removed by the purchaser

State Laws

Most states paralleled federal regs, but they seem to get more aggressive and will continue to increase because of the change of culture.

Criminal

Most violations carry criminal sanctions ... repeat willful violators. Some penalties are pretty significant. The Department of justice gets involved and the EPA assists. Criminal fines and incarceration.

Groups

NIMBY - Not in my backyard --> They wanted to shed light BANANA - Build Absolutely Nothing Anywhere Near Anything EPA - Federal Regulatory Agency, Environmental Protective Agency - Its reason for being is to protect and preserve the environment. Charged with implementing and enforcing our environmental laws including its own regulation. States are becoming more concerned with the environment

Common law

Nuisance Claims - Before protection started in the 1970's there was really only there --> When the activities of one landowner interest with the use and enjoyment of another landowner's property. Ex - Bad smells, ongoing noise, polluted air, etc. Usually the best they would get is an injunction (court order stopping the act of the complaint) but they might not even get that. Court has to way it.

Parts of the contract

Offer - It's okay if we don't discuss delivery right now.... Acceptance - Can occur in any reasonable manner. Don't have the mirror image rule. (Mirror image in common law - Do you want to buy this land for $5000 --> Yes, I will buy this land for $5000) Under UCC - mirror image rule doesn't apply. One can say --> yeah I'll buy these goods for $5000 but you have to deliver them, this is still a contact. Delivery can be negotiated in the future. Consideration - Just like at common law, consideration --> Otherwise a gift. Statute of Frauds - Certain types of contracts have to take WRITTEN FORM. It's okay to have oral contracts but some you have to put in writing. Writing form is lax, could be emails. If you have a sale of goods over $500. If you have a lease of goods over $1000.

Under Article 2 and Article 2A, the Uniform Commercial Code (UCC) may uphold a contract even though certain material terms of the contract may have left _______.

Open

Trade dress protection

Overall image of a product (shape of the iPhone) - protected under the Lanham Act.

Performance and Obligations

Parties (buyer and seller) --> Article and also applies to lessor and lessee --> Article 2A

Civil

Private lawsuits, sue for damages, injunctive relief, etc. Outcome of civil lawsuits help decrease unlawful behavior.

Duration of copyright

Protection lasts for life of the creator +70 years. Once it's expired, that work is available for anyone to use without cost. To be copyrightable - work must be fixed (in tangible form), original, and creative You don't have to register it, but it is best to because then you can sue for damages. If you don't you have common law protection but it's not that much.

Process for copyright

Register at the copyright office in DC. Send 2 copies to the material to the Library of Congress. Once registered, you are protected.

International Protection

Registrable Marks Categories - Arbitrary/fanciful - The most distinctive category. Common usage word, ex- Apple/Amazon Suggestive - Requires some imagination to reach a conclusion about the products use. Ex - Coppertone (sun tan lotion) or underarm our. Similar to register with the arbitrary Descriptive - Conveys an immediate idea as to the ingredients, qualities, characteristics of this particular good or service. Need to provide sufficient evidence that the public associates the mark with the producer. Generic - The least distinctive and never registrable. Marks/words. Ex- Thermos is actually a company but it became the item's identifier. Can't be registered.

Protection for marks

Remedies available if someone infringes on the mark. You have to go through a process It needs to be registered with the patent and trademark office in Washington DC. Submit drawing, tell how it's used, etc.

Breach and Remedies under UCC

Remedies come in to play after a breach occurred. Breach - when one of the parties doesn't perform as they were supposed to. Goal - Put the parties in the position they would have been in had the contact been completed. Time- UCC has a statute of limitations (4 years).

_______ is the preferred remedy for nonbreaching sellers as it provides an easy means to determine damages in a breach of sales contract by buyers.

Resale of goods

Resell goods

Sell the good to another party. Pursue court action to another buyer. If they agreed on $10,000 and they are only able to get $8000 from another buyer, the seller could sue the OG buyer for $2000.

Buyers remedies pt 2

Specific performance - Before UCC will allow ... Goods must be fairly unique or a legal remedy is not adequate. Typically specific performance is only available if the good aren't easily replaced. Non-conforming goods - Rejection is allowed. Buyer has the obligations to inspect.

Secret Business Information

State law - Offers from protection when it comes to secret information. You're protected to keep you secrets as long as you try to. You don't have to register. Recipe, client list, etc. Something that gives your business advantage over the competition. Lawful discovery is okay.. You need to take steps to protect this information. Ex - Employees leaving company need to be told not to disclose this. Non disclosure agreement would be good.

Enforcement

States require use of permits and such... 3 types of enforcement EPA Criminal Civil

If all the material elements of a contract are satisfied even if some nonmaterial requirements may not be satisfied, then under common law, which of the following has occurred?

Substantial performance

Tender of delivery requires which of the following?

Tender of delivery requires that a seller/lessor have and hold conforming goods at the buyer/lessee's disposal and give the buyer/lessee reasonable notification to enable him or her to take delivery.

Sellers obligation

Tender of goods - Seller/lessor has conforming good at their disposal intend to deliver them. What are they? Goods that conform the contract. They are exactly what was ordered. Perfect tender rule - Goods must conform down to the very last detail. They have to be exactly what the other party ordered. Exceptions - If goods are delivered, not down to last detail. they a little hard for the UCC. -Normas in the industry is okay in the event that nonconforming goods are delivered. -Course of dealing --> 10 times in the past buyer has accepted nonconforming goods. -History of dealings under the same contract or even exceptions to the perfect tender rule in the contract itself.

For a trademark to be protected in interstate commerce, it must be registered with which government office?

The U.S. Patent and Trademark Office

A collective mark identifies which of the following?

The producers of a product as belonging to a larger group

The right to cure

The seller can fix or cure nonconforming goods as long as they give notice of their intent to fix, as long as they do so in the time they said they would.

In some circumstances, a seller has the right to cure any defect in nonconforming goods. Which of the following is not an example of the seller's right to cure?

The seller has the right to repair, replace, and adjust any defect in the goods at any time.

Which of the following must occur when nonbreaching buyers or lessees obtain specific performance under the Uniform Commercial Code (UCC)?

The sellers or lessors must deliver the goods identified in the contract.

Business concern

The things they do impact the environment. Should we wrap in cardboard, paper, etc? Technology has helped make things less paper dependent. Types of issues - Air pollution, water pollution, toxic chemicals, lack of water, overall globalization

Environmental law - Global Concern

The water and the air moves around and isn't stationary. Things that are going around all over the world have an impact.

In order for someone to copyright a work, it must be all but which of the following?

The work must be created by a known artist.

Which of the following is the basic performance obligation of sellers and lessors under the Uniform Commercial Code (UCC)?

They are obligated to transfer and deliver conforming goods.

Trademark vs servicemark

Trademark - Identifies a product (nike swoosh) Service mark - Identifies a service (at&t ringtone)

Good faith

UCC defines it as HONESTY IN FACT. Everybody has to act in good faith. Merchants - They have to behave in a reasonably commercial manner.

Types of patents

Utility- Some sort of new or useful process, machine, article of manufacturer, etc. Once you file and the patent is granted, you have protection for 20 years. Limited period of time because you want to reward the creator, but not discourage inventions. Design - Protects and new and non obvious design. (Machines/manufacturing) - 14 years from the date of filing Plant - Protects inventions of genetically modified plants

Lawsuit

When you file the lawsuit for your damages, includes compensatory, advertising, mgt costs. Up to the court to award that.

Time of Performance

Will be set forth in the contract itself. In the absence of language, then the UCC usually says in a timing that is reasonable. Assurance of Performance - Sometimes one of the parties needs assurance. Assurance that someones will pay me when I deliver these goods. Buyer might learn that the seller is having some issues, and they can ask for assurance for delivery too! UCC says its reasonable to ask for assurance in good faith (not just to bother someone).

Remedies for marks

You can get an injunction - a court order telling that user can stop using the mark. This would be part of a lawsuit. You could sue for damages and you can be reimbursed for the damages and sometimes can be for treble damages (3x damages and maybe even attorney's fees)

Revocation of acceptance of nonconforming goods

You can't usually take back your acceptance, so buyer make sure to inspect unless there is good cause shown to take back acceptance. Parties can always further negotiate their remedies without getting the court involved.

Sections 2-716(1) and 2A-521(1) under the Uniform Commercial Code (UCC) allow nonbreaching buyers and lessees to seek the remedy of specific performance when

a remedy at law is inadequate.

When a buyer breaches a sales or lease contract before the seller has delivered the goods, Sections 2-703(a) and 2A-523(1)(c) of the Uniform Commercial Code

allow sellers to withhold delivery of goods.

When a change in government regulation that neither party to a contract of sale contemplated forbids the import or export of a particular item the parties had agreed would be shipped, non-performance is excused on the grounds of

commercial impracticability.

In contracts involving the sale of goods, the Uniform Commercial Code (UCC) gives the plaintiff _______ to file a lawsuit once the cause of action accrues.

four years

Pursuant to the Uniform Commercial Code (UCC), _______ is best described as previous commercial transactions between the same parties to a contract.

course of dealing

Under the _______ rule, the plaintiff has suffered purely economic damages.

economic loss

The UCC imposes the _______ of honest in fact and reasonable commercial standards of fair dealing between merchants.

good faith obligations

Under the Uniform Commercial Code (UCC), if a contract for the sale or lease of goods is silent about the place for delivery, the:

goods are to be delivered at the seller's place of business.

Laurens, Inc. contracted with GSP, LLC to widen a four-lane road to a six-lane road for ten miles. When Laurens, Inc. and GSP, LLC drafted the contract, the agreement contained a provision that if either party breached the contract, that party was liable to pay $10 million dollars to the nonbreaching party. This scenario is an example of _______.

liquidated damages.

Consequential damages include _______, as long as such damages are not too speculative.

lost profits

A distinctive mark affixed to a good, its packaging, or its labeling, such as the Nike "swoosh," is referred to as a

product trademark.

If a work is freely distributed without notice of copyright, it falls into the _______.

public domain

Under the Uniform Commercial Code (UCC) Sections 2-508 and 2A-513, if the seller gives prompt notice of the intent to fix problems with nonconforming goods and cures the problems within the contract time for performance, then

sellers and lessors have the right to cure or fix the problem.

A sale consists of the passing of the _______ from the seller to the buyer for a price.

title

Sharon, an aspiring fashion designer, has recently opened her flagship boutique. To give her brand a premium image, Sharon's boutique replicates the flooring, visual merchandising, and layout of True Couture Inc. stores, a luxury brand. Even the services and offers provided are similar to that of True Couture. This is an example of:

trade-dress infringement.

Uniform Commercial Code (UCC) defines _______ as any practice that members of an industry expect to be part of their dealings.

usage of trade