Business Law #2

Mistake of fact

(1) A mistake that is not caused by the neglect of a legal duty by the person committing the mistake but, rather, consists of unconscious ignorance of a past or present material event or circumstance. (2) An affirmative defense in which the defendant tries to prove that she or he made an honest and reasonable mistake that negates the guilty-mind element of a crime.

When do Miranda rights apply?

1. custody 2. custodial interrogation

Trademark Dilution

A doctrine under which distinctive or famous trademarks are protected from certain unauthorized uses regardless of a showing of competition or a likelihood of confusion.

Service mark

A mark used in the sale or the advertising of services, such as to distinguish the services of one person from the services of others.

What types of rules are passed through notice-and-comment rule-making?

Administrative rules

notice-and-comment rulemaking

An administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking in the Federal Register, a comment period for interested parties to express their views on the proposed rule, and the publication of the agency's final rule in the Federal Register.

treaty

An agreement formed between two or more independent nations

Burden of proof in a criminal case

Burden of proof is on the prosecution to prove defendant guilty beyond a reasonable doubt

Misdemeanor v. Felony

Can determine which court the case is tried and whether the defendant has a right to a jury

direct exporting

In direct exporting, a U.S. company signs a sales contract with a foreign purchaser that provides for the conditions of shipment and payment for goods.

What does an agency's enabling statute define?

It's legal authority

Generic Terms

Terms that refer to an entire class of products are not entitled to protection, even if the term was originally the name of a trademarked product.

plea bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval •Plea bargaining usually involves the defendant's pleading guilty to a lesser offense and receiving a lighter sentence.

Administrative rulemaking

The process by which an administrative agency formally adopts a new regulation or amends an old one

Administrative adjudication

The process of resolving a dispute by presenting evidence and arguments before a neutral third party decision maker in a court or an administrative las proceeding

Expropritation

The seizure by a government of privately owned business or personal property for a proper public purpose and with just compensation.

Dumping

The selling of goods in a foreign country at a price below the price charged for the same goods in the domestic market

Anti-dumping duties

To prevent dumping, an extra tariff- known as an antidumping duty- may be assessed on imports

Trademark Registration

Trademarks may be registered with the state or with the federal government. •To register for protection under federal trademark law, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. •Registration of a trademark with the U.S. Patent and Trademark Office gives notice on a nationwide basis that the trademark belongs exclusively to the registrant. •The symbol ® indicates that a mark has been registered. •Under current law, a mark can be registered: 1.If it is currently in commerce 2.If the applicant intends to put it into commerce within six months

Duress

Unlawful pressure brought to bear on a person, causing the person to perform an act that he or she would not otherwise perform. •Cannot be used as a defense to murder

Responsible Corporate Officer Doctrine

a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation

An agency:

- cannot regulate beyond the powers granted by the statute - may be required to take some regulatory action as required by the statute

exceptions to Government in the Sunshine Act

-where a person is accused of a crime -concerning an agency's issuance of a subpoena -where attendance of the public would significantly frustrate the implementation of a proposed agency action -concerning day-to-day operations -involves matters relating to future litigation or rulemaking

Methods of File Sharing

1) Peer-to-peer (P2P) networking → The sharing of resources (such as files, hard drives, and processing styles) among multiple computers without the requirement of a central network server. 2) Distributed network → A network that can be used by persons located (distributed) around the country or the globe to share computer files. 3) Cloud computing → The delivery to users of on-demand services from third-party servers over a network.Cloud computing is essentially a subscription-based or pay-per-use service that extendsa computer's software or storage capabilities

Arbitrary and Capricious Test

1. Failed to provide a rational explanation for its decision. 2. Changed its prior policy without justification. 3. Considered legally inappropriate factors. 4. Entirely failed to consider a relevant factor. 5. Rendered a decision plainly contrary to the evidence.

Steps of notice-and-comment rulemaking

1. notice of the proposed rulemaking 2. a comment period 3. the final rule

Licensing

A U.S. firm may license a foreign manufacturing company to use its copyrighted, patented, or trademarked intellectual property or trade secrets. •Licensing allows the foreign firm to use an established brand name for a fee. •The firm that receives the license can take advantage of an established reputation for quality. •The firm that grants the license receives income from the foreign sales of its products and also establishes a global reputation. •Once a firm's trademark is known worldwide, the demand for other products manufactured or sold by that firm may increase.

distributor agreement

A contract between a seller and a distributor of the seller's products setting out the terms and conditions of the distributorship.

Necessity

A defense against liability that is justifiable if the harm or evil sought to be avoided is greater than the harm committed

Entrapment

A defense in which a defendant claims that he or she was induced by a public official to commit a crime that he or she would otherwise not have committed. • For entrapment to occur, both the suggestion and the inducement of a crime must take place

Principle of Comity

A deference by which one nation gives effect to laws and judicial decrees of another nation

Trademarks

A distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known.

The Act of State Doctrine

A doctrine that provides that the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its own territory. •his doctrine is frequently employed in cases involving expropriation or confiscation

The statute of limitations

A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.. • If a criminal action is brought after the statutory time period has expired, the accused person can raise the statute of limitations as a defense. •The running of the time period in a statute of limitations may be tolled—that is, suspended or stopped temporarily—if the defendant is a minor or is not in the jurisdiction.

Patent

A government grant that gives an inventor the exclusive right or privilege to make, use, or sell his or her invention for a limited time period.

Confiscation

A government's taking of privately owned business or personal property without a proper public purpose or an award of just compensation.

Actus Reus

A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.

Misdemeanor

A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year in other than a state or federal penitentiary

Collective Mark

A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality, or accuracy of the specific goods or services.

Certification Mark

A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or accuracy of the owner's goods or services.

exclusionary rule

A rule under which any evidence that is obtained in violation of the accused's rights, as well as any evidence derived from illegally obtained evidence, will not be admissible in criminal court. •The purpose of the exclusionary rule is to deter police from conducting warrantless searches and engaging in other misconduct.

Cookies

A small file from a website and stored in a user's Web browser to track the user's Web browsing activities •ookies provide detailed information to marketers about an individual's online behavior and preferences, which is then used to personalize online services

Enabling Legislation

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

tariff

A tax on imported goods • A tariff is usually a percentage of the value of the import, but it can be a flat rate per unit. •Raises the price of imported hoods, causing some consumers to purchase domestically manufactured goods instead of imports

Tradename

A term that is used to indicate part or all of a business's name and that is directly related to the business's reputation and goodwill. •Trade names are protected under the common law, but only if they are unusual and fancifully used •Trade names may also be protected under trademark law, if the name is the same as the firm's trademark.

Worm

A type of malware that is designed to copy itself from one computer to another without human interaction.

Virus

A type of malware that is transmitted between computers and attempts to do deliberate damage to systems and data

What is the final rule?

After the agency reviews the comments, it drafts the final rule and publishes it in the Federal Register. It is later complied along with the rules and regulations of other administrations agencies in the Code of Federal Regulations. These rules now have binding legal effect (legislative rules) unless overturned by the courts.

Alien Tort Claims Act

Allows foreign citizens to bring civil suits in U.S courts for injuries caused by violations of the law of nations or a treaty of the United States • As a result, foreign plaintiffs used this act to bring actions against companies operating in foreign nations • However, the US Supreme Court held that foreign corporations could no longer be defendants in suits brought under the ATS

insanity defense

An insane defense does not enable a person to avoid imprisonment. It simply means that if the defendant successfully proves insanity, he or she will be placed in a mental institution

What happens if the arresting officer fails to inform a suspect of their rights?

Any statements the suspect makes normally will not be admissible in court

secondary meaning

Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning. •A secondary meaning may arise when customers begin to associate a specific term or phrase with specific trademarked items made by a particular company.

Strong mark

Fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive (strongest) trademarks.

Franchising

Franchising is a well-known form of licensing worldwide. •The owner of a trademark, trade name, or copyright (the franchisor) licenses another (the franchisee) to use the mark, name, or copyright, under certain conditions, in the selling of goods or services. •Franchising allows the franchisor to maintain greater control over the business operation than is possible with most other licensing agreements. •In return, the franchisee pays a fee, usually based on a monthly percentage of gross or net

joint venture

In a joint venture, the U.S. company owns only part of the operation. •The rest is owned by local owners in the foreign country or by another foreign entity. •All of the firms share responsibilities, as well as profits and liabilities.

trade secret

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

Agencies responsible for anti-dumping duties

International Trade Commission • The ITC assesses the effects of dumping on domestic businesses and then makes recommendations to the president concerning temporary import restrictions International Trade Administration • The ITA decides whether imports were sold at less than fair value

Malware

Malicious software programs designed to disrupt or harm a computer, network, smartphone, or other device

beyond a reasonable doubt

One that would cause a prudent person to hesitate before acting in matters important to him or her

Cybersquatting

Registering a domain name that is the same as, or confusingly similar to the trademark of another and then offering to sell that domain name back to the trademark owner.

Defenses to Crimes

Self-Defense, Necessity, Insanity, Mistake of fact, Duress, Entrapment, Statute of limitations, Immunity

Botnet

Short for robot network—a group of computers that run an application controlled and manipulated only by the software source.

Theft

Sometimes, state statutes consolidate the crime of obtaining goods by false pretenses with other property offenses into a single crime called simply "theft."

Administrative enforcememt

Tests and inspections, subpoenas, and search warrants

Robbery

The act of forcefully and unlawfully taking personal property of any value from another. • Force or intimidation is usually necessary for an act of theft to be considered robbery. • Aggravated robbery is robbery with the use of a deadly weapon

The Fair Use Exception

The fair use of a copyrighted work is not an infringement of copyright for the following purposes: • Criticism and comment • News reporting • Teaching • Scholarship • Research • In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for or value of the copyrighted work

embezzlement

The fraudulent appropriation of money or other property by a person to whom the money or property has been entrusted.

Trade dress

The image and overall appearance of a product

petty offense

The least serious kind of criminal offense, such as a traffic or building-code violation.

self-defense

The legally recognized privilege to do what is reasonably necessary to protect oneself, one's property, or someone else against injury by another.. •Protects only acts that are reasonably necessary to protect one's self or property •Also is justified in the prevention of a cr

Exhaustion Doctrine

The principle that a complaining party normally must have exhausted all available administrative remedies before seeking judicial review

Administrative process

The procedure used by administrative agencies in fulfilling their three basic functions: rulemaking, enforcement, and adjudication.

Burglary

The unlawful entry into a building with the intent to commit a felony. •Aggravated burglary occurs when a deadly weapon is used

Larceny

The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. •Some states classify larceny as either grand or petit • Larceny differs from robbery in that larceny does not involve force or fear

Agency vs distributorship

When a U.S. firm engaged in indirect exporting wishes to limit its involvement in an international market, it will typically establish an agency relationship with a foreign firm. •The foreign firm then acts as the U.S. firm's agent and can enter contracts in the foreign location on behalf of the principal (the U.S. company). •When a foreign country represents a substantial market, a U.S. firm may wish to appoint a distributor located in that country. •The U.S. firm and the distributor enter into a distribution agreement.

subsidiaries

When a wholly owned subsidiary is established, the parent company maintains complete ownership of all the facilities in the foreign country, as well as total authority and control over all phases of the operation.

Immunity (Defense to Criminal Liability)

When the state wishes to obtain information from a person accused of a crime, the state can grant immunity from prosecution •Often, a grant of immunity from prosecution is part of plea bargaining.

Regulatory Flexibility Act

Whenever a new regulation will have a significant impact upon a substantial number of small entities, the agency must conduct a regulatory flexibility analysis.

Trademark Infringement

Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed (used without authorization). •When a trademark has been infringed, the owner of the mark has a cause of action against the infringer. •To succeed in a trademark infringement action, the owner must show that the defendant's use of the mark created a likelihood of confusion about the origin of the defendant's goods or services. •The most commonly granted remedy for trademark infringement is an injunction to prevent further infringement.

Must a suspect unequivocally and assertively ask to assert their right to counsel in order to stop police questioning?

Yes

Felony

a crime that carries the most severe sanction, ranging from one or more years in prison to forfeiture of one's life

Quotas

a government-imposed trade restriction that limits the number, or monetary value, of goods that can be imported or exported during a particular time period

multilateral agreement

an agreement between more than two nations

bilateral agreement

an agreement formed by two nations to govern their commercial exchanges or other relations with one another

The New York Convention

an international agreement governing the use of arbitration as a method of resolving private international disputes • There is a written or recorded agreement to arbitrate the matter •The agreement provides for arbitration in a convention signatory nation • The agreement arises out of a commercial legal relationship • One party to the agreement is not a U.S citizen

Creation of Administrative Agencies

created to establish expertise and exercise supervision over certain problems about which congress is concerned, congress delegates power to the agency (the "delegation doctrine") through an enabling statute which specifies the name, comp., purpose, function, and power of the agency

Suggestive Trademarks

indicate something about a product's nature, quality, or characteristics, without describing the product directly

Government in the Sunshine Act

requires that every portion of every meeting of an agency be open to public observation and the public be provided with adequate advanced notice of scheduled meetings and agendas

Trade Secrets Act

restricts disclosure of trade secrets and provides for civil and criminal penalties for violations. does not need to be requested, company can just declare such status by adhering to certain practices.

What are the Miranda Rights?

right to officially be informed of 5th and 6th amendment protections when one is arrested. Right to remain silent and right to an attorney

self-incrimination

the giving of testimony which will likely subject one to criminal prosecution

Mens rea

the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

obtaining goods by false pretenses

theft that involves trickery or fraud in order to receive property, services, or cash

Arbitrary Marks

use common words in an uncommon way ("Dutch Boy" for paint).

fanciful marks

use invented words (Google)

DMCA (Digital Millennium Copyright Act)

• Established civil and criminal penalties for anyone who circumvents(bypasses) encryption software or other technological antipiracy protection • Prohibits the manufacture, import, sale, and distribution of devices or services for circumvention >ISP's are not liable for copyright infringement unless they are aware of the violation

indirect exporting

•Indirect exporting occurs when a U.S. company develops sufficient business in a foreign country and establishes a specialized marketing organization there by appointing a foreign agent or a foreign distributor.

The Regulatory Flexibility Act

•contains provisions to alert small businesses about forthcoming regulations •relieved small businesses of some record-keeping burdens, especially with regard to hazardous waste management

Freedom of Information Act

•requires the federal government to disclose certain records to any person on request, even if no reason is given for the request •An agency's failure to comply with an FOIA request can be challenged in a federal district court • All federal government agencies have to make their records available electronically •Exceptions include: anything pertaining to national security and confidential/personal information