BLAW (Commercial Law) Exam 2

No secret profits

"Secret profit" made by an agent. ... An agent is under a similar duty; unless the principal consents, the agent cannot make any profit out of his relationship with the principal except the agreed remuneration or commission

Bankruptcy

"The Congress shall have the power to... establish... uniform laws on the subject Bankruptcies throughout the US." --Where in the constitution?? = Article I, Sect. 8 (-date of bankruptcy- the day that u file- an automatic stay)

Who can file? -Ch. 7 -Ch. 13

-Individuals and business entities -Individuals only (Including sole proprietors)

Contractual liabilities of the parties

-Is they 3rd party liable? Yes, if express, implied, or apparent authority -Is the agent liable? Normally no but yes if not authority, no disclosure or partial disclosure

Servant

-Mater-servant doctrine -Employee, one that is hired for a long term period -Under the direct supervision of the boss (both are liable)

Basics of Agency Law:

-Negotiate contract vs. Make contract (Agents do NOT sign contracts, only negotiate) -Principal -- Agent -- 3rd person -Master-Servant vs. Independent contractor (Master-Servant: employer & employee)

2 categories of Agents

-Servant -Independent contractor

CH. 14: BANKRUPTCY

-federal law only***, in constitution (article 1, sec. 8)

Costs and Attorney's Fees

A copyright owner may recover his costs and, depending on the jurisdiction, reasonable attorneys' fees.

What makes it harder for ppl to move to diff states?

Bankruptcy Reform Act

A disclosed or partially disclosed principal

is liable to a third party for a contract made by an agent who is acting within the scope of his or her authority.

Foreclosure

Foreclosure is the legal right of a mortgage holder or other third-party lien holder to gain ownership of the property and/or the right to sell the property and use the proceeds to pay off the mortgage if the mortgage or lien is in default. It is a concept that has existed for centuries. Initially, the law had it that a mortgage default resulted in the automatic ownership of the property by the holder of the mortgage (sometimes referred to as the mortgagee). But the law developed over the years so as to allow mortgagors time to pay off mortgages before their property was taken away. This process of taking away the mortgagor's property because of default is what constitutes foreclosure.

Landlord-Tenant Law

Landlord-tenant law governs the rental of commercial and residential property. It is composed primarily of state statutes and common law.

Marks are placed:

Marks are placed in a certain "class", & our system allows for the same mark to be used by different users for different goods/services

Franks v. Pritchett

P found brick of $$ in hotel drawer, told Ds (hotel managers) who called police, police held $$ in trust pending outcome. Court said property was mislaid (purposely put in drawer and forgotten) so it belongs to hotel owners, not finder.

A final (fun) trademark case...

The North Face vs. The South Butt

What may be patented?

The invention must be: 1. Novel 2. Useful 3. Non-obvious

What can one recover if their copyright has been infringed?

There are several remedies available to the owner of a copyright in the event of infringement. These remedies are available to owners of registered copyrights under § 106 of the federal Copyright Act. These remedies include monetary relief, equitable relief, and costs and attorney's fees.

Limitations of trademark law

Though almost any word, phrase, symbol, name, or device for distinguishing a brand can be trademarked under trademark law, there are limitations. A marks eligibility for protection under trademark law is limited by the functionality doctrine. If a mark falls under the functionality doctrine, it can be denied trademark protection. The functionality doctrine incorporates two categories that must be met: 1. Use in commerce 2. Distinctiveness

Classification of marks

-*Generic*: (weakest) ex. "lite beer" -Descriptive -Suggestive -Arbitrary -*Fanciful*: (strongest) ex. Nike and the "swoosh"

Independent Contractor

-Can provide services to many companies/persons -Sets own hours -Does not receive employment benefits -Works independently -Incurs costs associated with the job -Not subject to tax & social security withholding -Not eligible for worker's comp & unemployment -Does not receive overtime -Not covered by employment anti-discrimination law

Overview of bankruptcy:

-Combination of federal & state law (bc AR exemptions) -Bankruptcy Reform Act of 2005: 10 yrs. in the making (considered old but still important) -Bankruptcy courts: under the authority of the US District Courts

Summary of copyright law

-Copyright can be obtained by federal registration or common law -Life of a copyright is life of author + 70 -Mark Twain

How long does it take to receive a discharge? -Ch. 7 -Ch. 13

-Typically three to five months -Upon completion of all plan payments (Usually three to five years)

Employee:

-Usually works for one employer -Hours set by employer -Receives employee benefits & health insurance -*Under direct supervision & right of control* -Has taxes & social security withheld -Eligible to receive unemployment & worker's comp -Covered by minimum wage & overtime -Covered by employment anti-discrimination laws

Legal or illegal? You copy a DVD that you rented from Redbox so that you can watch it later.

Ans: Illegal -- bc rented it. So that is stealing

U of A WIPO cases: 1. 2004

In 2004 the University of Arkansas was involved in a WIPO case involving the domain name "universityofarkansas.com". The Respondent, known as "Freedom Domains" with an address in New York City, did not file a response. The web site contained graphic pictures of aborted fetuses. The single panelist hearing the "no response" case found that the Respondent's domain name was identical or confusingly similar to the Complainant's mark, that the Respondent had no right or legitimate interest in the domain name, and that the Respondent registered and used the domain name in bad faith. The panel stated that the Respondent's use of the domain name was clearly intended to attract visitors to the site who had actually been searching for the university's true site. It was also noted that the Respondent was thought to be the same entity that was seeking to sell "high traffic pro-life domains" for only $999. Having satisfied its burden of proof with regards to the three policy requirements, the University of Arkansas was awarded ownership of the site.

2. 2009

In 2009 the University of Arkansas brought a WIPO action in an effort to obtain ownership of the domain name "razorbacks.com," which had been registered by "FanMail.com, LLC" of Huntsville, Alabama. The domain name was first registered in August of 1995. The Respondent had registered similar names such as "aggies.com" and "wolverines.com." One of the products sold was a "vanity E mail service," such as [email protected]. The University of Arkansas made its initial contact with Respondent more than seven years after the domain name was first registered by sending a cease and desist letter. Five years later (2008) the university again contacted Respondent and demanded transfer of the domain name. At this point Respondent's attorney replied with a letter in which he refused to comply with the university's request, arguing that all claims to the domain name were lost to the university as a result of laches, waiver, and estoppel. The WIPO complaint was filed in 2009.

RESTATEMENT (SECOND) OF AGENCY § 1(1).

In other words, one person (the agent) agrees to do something for another party (the principal), subject to the control of the other party, and the other party (the principal) also agrees to the agreement. It simultaneously means the principal is bound (normally) by what the agent does, since the agent is acts as if the principal were there him/herself. It is a fiduciary and consensual relationship between two "persons" where one person acts on behalf of the other person and where the agent can form legal relationships on behalf of the principal. It may be a business or personal relationship. It allows the principal the ability, if you will, to be more than one place at a time, thereby expanding their potential business opportunities. (Simply stated, the agent acts for the principal as if it were the principal acting -and with the same authority- as if it were the principal.)

Are There Penalties for Wrongful Termination of an Agency Relationship?

Laws that govern agency relationships are based on both contract and employment law. If an agency is wrongfully terminated, one party can sue the other for: -Breach of contact: Many agency relationships are created by a contract. Wrongfully terminating the agency relationship is a breach of the contract. -Employment law: An agent is basically an employee of the principal. A wrongfully terminated agent can bring a wrongful termination claim against the principal.

Fee simple absolute

Life estate: for life only. One person owns something & they own all of it (fee simple absolute). can only transfer your title completely, can't split (If previous grantors of a fee simple estate do not create any conditions for subsequent grantees, then the title is called fee simple absolute. A fee simple absolute is the highest estate permitted by law and it gives the holder full possessory rights and obligations now and in the future.) -A "fee simple absolute" is what one typically thinks of when someone els "owns" something. Typically, this is an interest in property a person will receive when they either buy land or receive land as a gift. The interest is absolute because the interest will not end on the occurrence of an event or condition. The owner of a fee simple absolute has the following rights: -The right of possession -The right of alienation -The right of exclusion Traditionally, the words of conveyance required to create a fee simple absolute were akin to "from A to B and his heirs." A fee simple absolute, however, is the preferred property interest and Courts will view any conveyance as a fee simple absolute unless there is clear language to the contrary.

Life estate

Many jurisdictions retain the possibility of creating a life estate, although this is uncommon. In the United States, life estates are most commonly used either to grant someone use of the property for the remainder of that person's life in a will, or by a grantor to reserve the right to continue using the property for the remainder of the grantor's life after it is sold. The right to ownership of the property after the death of the life estate owner is called the remainder estate. In England and Wales fee simple is the only freehold estate that remains; a life estate can only be created in equity and is not a right in property.

Rules of Foreclosure

If you default on your mortgage, your lender can foreclose on your home. Depending on your state's laws, if the proceeds from the foreclosure sale are not enough to pay off your mortgage balance, you may be on the hook for a deficiency.

PROPERTY RIGHTS: THINGS THAT CAN'T BE OWNED

Some things can't be owned at all and therefore can't be private property. Some of these things, such as light, air, and the high seas, can't be owned because they naturally seem communal. Other things, such as rivers and coastal waters, can't be owned because they belong to the public. And some things can't be owned because they're illegal, like heroin.

Exemptions in straight liquidation:

property which is "exempt": in the following states you may choose to use either the federal exemptions or the state exemptions (in the remaining states you must use the state exemptions) -Alaska, AR, Connecticut, DC, Hawaii, Kentucky, Mass., Mich., Minnesota, New Hamp., New Jersey, New Mexico, NY, Oregon, Pennsylvania, Rhode Island, Texas, Vermont

Express Authority:

· Express Authority: Authority declared in clear, direct, and definite terms, orally or usually in writing. · Equal Dignity Rule: If a contract being executed by an agent on the principal's behalf is in writing, most states require that the agent's authority must also be in writing; otherwise, the contract executed by the agent is voidable at the principal's option. · The equal dignity rule does not apply when the agent acts in the principal's presence or when the agent's act is merely perfunctory (ministerial). · Power of Attorney: A written document, usually notarized, authorizing an agent to act for a principal.

The deposit: AR statutory protection

"If the landlord fails to comply with this subchapter, the tenant may recover the property & money due him, together with damages in an amount equal to twice the amount wrongfully withheld, costs, & reasonable attorney's fees..." Ex.: deposit of $200, attorney's fees of $100, court costs of $75. how much does the tenant recover? (we dk)

Tort liability of the principal for acts of the agent: respondeat superior

"make the master answer" Requirement 1: Master-servant relationship - Example: Arkansas case - Taylor v. Gill (In sum, we see a marked difference between the authority of Joyce Taylor to stop Willis from doing the work altogether, which she most certainly could have done, and her authority to control the exact manner in which Willis went about his task. We observe no proof that the Taylors intended to micromanage, or could have micromanaged, how Willis actually accomplished his work. Nor do we glean from the record that Willis would have subjected himself to such control in performing this favor. -Because there was no substantial evidence regarding the existence of the agency relationship, the judgment of the trial court must be reversed as to the Taylors. We remand for an order consistent with this opinion.)

Conveyance of real property

(Conveyance is the act of transferring an ownership interest in property from one party to another. Conveyance also refers to the written instrument, such as a deed or lease, that transfers legal title of a property from the seller to the buyer.) -Three "steps" in most conveyances: 1. Listing Contract 2. Offer and Acceptance 3. Deed (changes title from seller to buyer)

Denial of a discharge- the worst of all- (AKA: the death penalty) *** KNOW THIS

(Denial of discharge is a penalty for debtor misconduct. ... The trustee proceeds to gather and liquidate the assets of the estate, so the debtor loses not only the non exempt assets but any chance of ever discharging the debts in bankruptcy.) -Destroying or falsifying records. -Making a false statement under oath. -Secretly transferring or concealing property. -Failing to explain loss of assets. -*Having received a (bankruptcy) discharge in the prior 8 yrs*-- formerly 6 yrs.

Two types of deeds...

(Process whereby title goes from seller to buyer) -Warranty deed: absolute guarantee. prepared by the seller (guaranteed) -Quitclaim deed: caveat emptor! (let the buyer beware) (no guarantee)

Servant (extra facts)

(The Restatement (Second) of Agency, Section 2, defines a servant as "an agent employed by a master [employer] to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.")

Types of patents

(still both 20 yrs) -Utility patents -Design patents (There are two main types of patents granted by the U.S. Patent Office: design patents and utility patents. Determining which type of patent applies to your invention can be crucial to receiving adequate protection for your invention. While a utility patent is by far the most common type of patent used to protect inventions, a design patent should not be overlooked for certain types of invention.) -Many companies and inventors seeking patent protection often wonder what type of patent to file for. -In general terms, a "utility patent" protects the way an article is used and works (35 U.S.C. 101), while a "design patent" protects the way an article looks (35 U.S.C. 171). - USPTO.gov -Determining which type of patent to file for is one of the most crucial decisions for an inventor in receiving adequate protection for their inventions. -Utility patents are the most common type of patent used, but design patents are preferable in certain situations and are becoming more important

Eminent domain- Kelo v. City of New London** (#34**) ON TEST

-"...nor shall private property be taken for public use, without just compensation." **Amendment 5. Eminent domain, also referred to as condemnation, is the taking of private property by local, state or federal government for a *public use*, providing the payment of just compensation to the owner of that property. --What follows: the famous KELO case! --Kelo v. the City of New London

Ratification

-"the retroactive approval of an unauthorized transaction" >Any affirmation of the contract buy word or action suffices. Need not notify the third party >Once ratification takes place, it is just as if the contract was authorized initially

Tort liability of principal and agent

--Agent: the "tortfeasor." Primarily liable. --Respondeat superior: the principal can be held secondarily liable if the tort was in the "course and scope of the business." --There must be a "master - servant" relationship, based on "right of control." --The tort must have occurred in the "course and scope" of employment

Straight liquidation procedures:

-Anything you can earn after the date of bankruptcy is yours to keep. -This does not include "passive" income (any money that is not earned "by the swear of your brow") -Also, anything you inherit or receive by a gift w/in 6 mos. after the date of bankruptcy is part of the estate. (-straight liquidation procedures: -w rental property, the trustee now owns that property)

Kinds of Bankruptcy:

-Ch. 7- Straight liquidation (70%) -Ch. 9- Cities -Ch. 11- Business reorganization -Ch. 13- Wage earners plan (29.5%) (straight liquidation ch. 7 - 70% of filings. ch. 13- allows consumer debtors to rearrange their debts w/o losing their things) (-most common- straight liquidation (70%) (not gonna lose ur stuff), cities, business reorganization, family farmers/fisherman, etc. - in ch. 13 ur gonna lose ur stuff)

Eligibility restrictions -Ch. 7 -Ch. 13

-Disposable income must be low enough to pass the chapter 7 means test -Cannot have more than $394,7255 of unsecured debt or $1,184,200 of secured debt

Remedies:

-Equitable remedies -Monetary damages (possibility of triple damages in the case of willful infringement) -Attorney's fees (no criminal penalties)

Creation of Agency***

-Express (power of attorney) (actual) -Implied (when an employer doesn't explicitly state what powers he/she will hold) (actual) -Apparent (not actual, a person just pretends to have the authority that they do not have) -Ratification (retroactive approval of an unauthorized transaction)

Ownership interests in real property

-Fee simple v. life estate -Leasehold estates (leases) -Forms of multiple ownership

Duties of the Agent:

-Fiduciary: act in good faith. -Avoid conflict of interest. -Do not compete with the principal. -No secret profits

Course and scope of employment:

-Going and coming -Lunch breaks -Exception: intentional torts (unless job related) (A type of tort that can only result from an intentional act of the defendant. Depending on the exact tort alleged, either general or specific intent will need to be proven. Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress.)

Digital Millennium Copyright Act

-Illegal to defeat a technological measure to gain unlawful access to work -Cant help others defeat the technological measure (known as "hacking") -Cant market or sell technology that would defeat the security measure (protect access to incripted work, & entities that provide these services)

Type of bankruptcy -Ch. 7 -Ch. 13

-Liquidation -Reorganization

Mortgages

-Mortgage (lien) -Notice-race system -Foreclosure and deficiency judgement (Mortgage- security interest on real property. long term debt)

Summary of Arkansas' Foreclosure Laws

-Most common type of foreclosure process: Nonjudicial under power of sale in a mortgage -Notice of the foreclosure: Foreclosing party must mail a notice to the borrower that includes information about loan modification assistance, among other things, at least ten days before starting a foreclosure. Foreclosing party must record a notice of default and intent to sell, and then mail a copy by certified and first-class mail to the borrower within 30 days after recording the notice. Notice must also be published in a newspaper consecutively for four weeks prior to sale, posted at the courthouse, and published on the internet. -Reinstatement of loan before sale: Allowed prior to the sale -Redemption after sale: Not available after a nonjudicial foreclosure -Special protections for foreclosures involving high-cost mortgages: An intentional violation of the Arkansas Home Loan Protection Act renders the loan agreement void. The lender then has no right to collect, receive, or retain any principal, interest, or other charges at all with respect to the loan, and the borrower may recover any payments made under the agreement. -Deficiency judgments: Allowed for difference between: the indebtedness minus the fair market value of the property or the indebtedness minus the foreclosure sales price (whichever is less). Lawsuit must be filed within 12 months of sale. -Cash exempted in bankruptcy: About $12,725 for one person, $25,450 for a married couple under federal bankruptcy exemptions. $200 if single; $500 if married or head of household under state bankruptcy exemptions.

Adverse possession (AKA: squatter's rights)

-Must be under claim of ownership. -Must be open & hostile. -Must be continuous. -Tacking allowed- one can tack on the time if someone else is squatting. -Need NOT be in good faith! -In AR, usually 7 yrs is enough, but might be longer. (-adverse possession- must be open, hostile, continuous. Do not have to have deed for it or anything like it that u own the property* In AR, usually 7 yrs is enough, but sometimes longer)

Allows reducing the principal loan balance on secured debts through a loan cramdown? -Ch. 7 -Ch. 13

-No -Yes (If requirements are satisfied)

Allows removing unsecured junior liens from real property through lien stripping? -Ch. 7 -Ch. 13

-No -Yes (If requirements are satisfied)

Contractual liability of the agent:

-No authority -No disclosure -Partial disclosure

Recordation systems:

-Notice race system: what most states use. -Ex*** (ON TEST): Allen sells to Baker, who does not record. Then the next day Allen sell to Carter, who is in good faith, & does record. Who is the owner? = Carter is the owner.

How to obtain a copyright?

-Registration with the US Copyright Office- now not required. used to be. no real benefit. the registration just recognizes -Common law (use of circle C or word "copyright" no longer required) must register prior to filing suit for infringement (so- 2 ways- registering w fed., or not registering w anybody)

How to obtain patent?

-Registration with the US Patent Office -Effective time -Cost: about $10,000 -Judicial review

Most common agents

-Representatives of corporations -Directors and officers

What has to happen to hold them responsible

-Requirement 1: Master - servant relationship - Ex: Arkansas case - Taylor v. Gill

Federal exemptions:

-Residence & burial plot: $23,675 -Motor vehicle: $3,775 -Household items: $12,625 -Jewelry: $1,600 -Life insurance: $12,625 -IRA's (under both state & federal)

Tort liability of the principal for acts of the agent

-Respondent Superior: "make the master answer"

Transfer of title to personal property

-Sale: governed by the UCC -Gift: 2 ways- -Intervivos: while alive. 2 requirements... intent + delivery -Causa Mortis: in a will Tax consequences? -when transfer title of something it's taxed cost basis at the current market value- if had a house you bought for cheaper & 20 yrs later your kids inherit it- they'll have to pay taxes of what the house is worth at that present time

Another provision of the DMCA: The "Safe Harbor Defense"

-Sect. 512 of the Act provides a defense to an allegation of copyright infringement if the online service provider (OSP) complies with the act. -Requirements: OSP must not have actual knowledge that is hosting infringing material. OSP has no duty to monitor its service or affirmatively seek infringing material. Usually notice comes from written notification by copyright holder. OSP must then remove (take down) or disable access to infringing material. -(Intended to protect service providers-- assuming that they take reasonable steps to clear out those copyrighted violations)

Two categories of agents:

-Servant (master-servant doctrine) -Independent contractor (right of control)

Classification of property

-Tangible v. Intangible (includes intellectual) -Real v. Personal -Real includes: land, building, fixtures -**What is a fixture? Look for chandelier or ceiling fan, an above ground pool & window air-conditioning is NOT a fixture

Periodic Tenancy

-The relationship is automatically renewed unless the landlord gives advance notice of termination -In this relationship, the tenant has the right to possess the land, to restrict others (including the landlord from entering the land, and to sublease or assign the property). (the tenant is under the obligation to tell the landlord if they're moving in 30 days or otherwise the landlord has the legal authority to charge***)

Term of Years of Tenancy

-The relationship lasts for a fixed period which is agreed upon in advance by both the landlord and tenant. When the period ends, so do the tenant's possessory rights/ -In this relationship, the tenant has the right to possess the land, to restrict others (including the landlord from entering the land, and to sublease or assign the property).

What happens to property in bankruptcy? -Ch. 7 -Ch. 13

-Trustee can sell all nonexempt property to pay creditors -Debtors keep all property but must pay unsecured creditors an amount equal to value of nonexempt assets

Drawbacks -Ch. 7 -Ch. 13

-Trustee can sell nonexempt property. Does not provide a way to catch up on missed payments to avoid foreclosure or repossession -Must make monthly payments to the trustee for three to five years. May have to pay back a portion of general unsecured debts

AR EXEMPTIONS** (know these!!!)

-Wearing apparel (NOT jewelry) -A small amount of money ($500 only if married/have a family) -Homestead (if you're married/have a family)

A few final things

-You can reaffirm a debt with court permission. (Bankruptcy helps you get out of debt by breaking the contract between you and your creditors. Sometimes, however, you'd like to keep a loan in place—especially if you want to retain the property securing the debt, such as a car. Reaffirmation is the process wherein you agree to remain responsible for a debt so that you can keep the property securing the debt (collateral). You and the lender enter into a new contract—usually on the same terms—and submit it to the bankruptcy court. Before you can enter into a reaffirmation agreement, you'll need to be current on the loan. Also, you must be able to protect all of the equity in the property with a bankruptcy exemption. If you can't exempt all of the property's equity, the trustee will likely sell the asset and use the proceeds to pay your unsecured creditors.) -Bankruptcy will stay on your credit report for TEN yrs. -Some employers review your credit record before deciding whether to offer a job

Agent

-a person who represents another person: >In negotiating a contract (insurance/real estate) > In making a contract -Principal-Agent-Third Party

Do not compete with the principal

-act within the scope of authority or power delegated by the principal; -to take action only within the scope of the his/her actual authority; -to comply with all lawful instructions received from the principal and persons designated by the principal concerning agent's actions on behalf of the principal; -to act reasonably and to refrain from conduct that is likely to damage the principal's interests. An agent is liable to indemnify a principal for loss or damage resulting from his/her violation of the duties.

Termination

-common law rule -I can fire anybody at any time for any reason or no reason at all without notice and pay >Term v. at will >If term: Power v. right >If at will: no reason needed >Termination by operation of law

Duties of principal

-compensation

Duties of Agent

-fiduciary (A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). ... In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.) >performance based on contract >loyalty >obedience >accounting

Some key pts.*

-person who was given life tenancy is the only life that matters** - life estate --fee simple (highest form of ownership thats developed in common law)- (u own it & write a will so heirs inherit it- even if don't write will heirs get it). -person that was given life tendency- *only life that matters -in a lease if its residential property, & its at will, u still need to give 1 mos. notice (30 days) true for both landlord & tenant -the deposit: how much does the tenant recover? -we dk

Independent Contractor

-right of control -short term -no supervision (only one liable)

Ex. case- Boyd v. Roberts, Arkansas Court of Appeals, 2007 ***

1. Adverse possession - contiguity of property - gap property. - Where appellants' property was contiguous to gap property between appellants' and appellees' properties, and where appellants clearly claimed title to all of the property from their western border to the appellees' eastern border, including all of the gap property, there was no gap between the property owned by the appellants and the land they claimed by adverse possession; thus, it was clear that the appellants' property was contiguous to the property that they claimed by adverse possession. 2. Adverse possession - sufficiency of acts of ownership - reversed and remanded for such findings. - Because the trial court made no findings regarding the sufficiency of the appellants' acts of ownership regarding any property that is contiguous to their property that is owned by one of the appellees, the appellate court reversed and remanded for the trial court to make additional determinations as were necessary.

In summary, there are two ways to gain a trademark for a mark that is qualified for trademark protection:

1. By being the first to use the mark in commerce. 2. By registering the mark with the USPTO.

Forms of multiple ownership**

1. Common: any ratio. Interests are inherited. (rights of heirs are protected by common law) 2. Joint: ratios the same. Interests are NOT inherited. If sale by one co-owner, the buyer then owns "in common" with the others. (if a party dies, the rights of the heirs are defeated & their interest is split btwn the still living parties. anyone can. sell their interest w/o the permission of the other owners, & the new buyer now has ownership in common 3. Entirety: joint btwn parties who are married (to each other). cannot separately sell. (50/50) (-forms of multiple ownership: 1. Common (any proportion & protects the rights of heirs 2. joint (if its 4- 1/4 1/4 1/4 1/4- if one of joint owners sell it, then other owner still owns it but owns it jointly w new owner) (has to be proportioned) 3. Entirety (2 parties married to each other- cannot separately sell)* (has to be proportioned))

What are the purposes of bankruptcy?

1. Economic rebirth to debtors 2. Fair treatment of creditors --Top 5 reasons ppl go bankrupt: -Medical expenses -Job loss -Poor (excess) use of credit -Divorce/separation -Unexpected expenses (death, casualty) (Bankruptcy laws serve two main purposes. The two main policies of bankruptcy are the fresh start for the honest but unfortunate Debtor (you) and equal treatment of Creditors (the people you owe). If you file for bankruptcy and follow the Bankruptcy Code rules, bankruptcy law gives you a fresh start by canceling many of your debts through a court order known as the Discharge. Bankruptcy will allow you to pay your Creditors a portion of what they are owed depending on what you can pay. After bankruptcy, the Discharge prevents your creditors from trying to collect the remainder of what you owe them.

The law of agency breakdown

1. Fiduciary relationship where one person (agent) acts for another (principal) 2. Agency exists where: (1) one person (the principal) consents that another (the agent) shall act on P's behalf and subject to P's control and (2) A consents so to act 3. RULE: agent for an undisclosed/partially disclosed P is presumed to be a party to a K unless K explicitly specifies otherwise 4. It is the principal who creates the authority 5. P is only liable for A's act w/in the scope of his authority 6. If A exceeds actual/implied authority & 3rd party relied, go after agent 7. Principal's liability in contract: a principal "is subject to liability upon contracts made by an agent acting within his authority if made in proper form and with the understanding that the principal is a party" (The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual fiduciary relationships that involve a person, called the agent, that is authorized to act on behalf of another (called the principal) to create legal relations with a third party. Succinctly, it may be referred to as the equal relationship between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work under his or her control and on his or her behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him or her and third parties into contractual relationship. This branch of law separates and regulates the relationships between: -agents and principals (internal relationship), known as the principal-agent relationship; -agents and the third parties with whom they deal on their principals' behalf (external relationship); and -principals and the third parties when the agents deal.)

The Bankruptcy Reform Act of 2005:

1. Gives bankruptcy judge authority to dismiss a Ch. 7 (straight liquidation) & convert it to a Ch. 13 (wage earner's plan). 2. Presumption of abuse if current monthly income is above certain level. *Basically, if family income is greater than the median in that state*, a Ch. 13 may be required.

To be a holder in due course, the 3rd party must:

1. Have acquired the instrument in good faith 2. Acquired instrument before it was overdue 3. Have paid value for the instrument

kinds of negotiable instruments

1. Promissory note (if says I promise***): A (maker) --- B (payee) 2. Draft (A draft is an order to pay money and a note is a promise to pay money. ... When a person, often called a "bearer," presents a check at the bank on which it is drawn, he or she is effectively presenting an order that the bank pay the amount of the check): A (drawer) ... B (payee) C (drawee) 3. Check: "draft drawn on a bank and payable upon demand" 4. CD: (don't worry ab) -(-The person who has a bank account and draw/write a cheque is the Drawer and his bank is the Drawee and to whom it is payable is the Payee. In case of self cheque the Drawer himself is the Payee.) (.A demand draft is a negotiable instrument similar to a bill of exchange. A bank issues a demand draft to a client (drawer), directing another bank (drawee) or one of its own branches to pay a certain sum to the specified party (payee). ... However, demand drafts are difficult to countermand. A demand draft can also be compared to a cheque. However, demand drafts are difficult to countermand. Demand drafts can only be made payable to a specified party. But, cheques can be made payable to the bearer. Demand drafts are orders of payment by a bank to another bank, whereas cheques are orders of payment from an account holder to the bank.)

A few comments on Ch. 13 filing:

1. Repayment plan is subject to a "confirmation hearing" at which time "interested parties" may object to the plan 2. The court will confirm the plan if its accepted by the secured creditors 3. The court will confirm the plan if the secured creditors will retrain their mortgage until there is payment in full or debtor receives discharge 4. Plan is usually for 3 to 5 yrs.

The "offer and acceptance" (contract)

1. Statute of Frauds 2. Offer can be revoked... Acceptance valid when mailed. 3. Disclosures (disclosures when property is "listed") (As may be the case with other contracts, real estate contracts may be formed by one party making an offer and another party accepting the offer. To be enforceable, the offers and acceptances must be in writing (Statute of Frauds, Common Law)and signed by the parties agreeing to the contract. Often, the party making the offer prepares a written real estate contract, signs it, and transmits it to the other party who would accept the offer by signing the contract. As with all other types of legal offers, the other party may accept the offer, reject it (in which case the offer is terminated), make a counteroffer (in which case the original offer is terminated), or not respond to the offer (in which case the offer terminates by the expiration date in it). Before the offer (or counteroffer) is accepted, the offering (or countering) party can withdraw it. A counteroffer may be countered with yet another offer, and a counteroffering process may go on indefinitely between the parties. To be enforceable, a real estate contract must possess original signatures by the parties and any alterations to the contract must be initialed by all the parties involved. If the original offer is marked up and initialed by the party receiving it, then signed, this is not an offer and acceptance but a counter-offer.)

Example case of duty of payor bank

1995 Michigan case: payee, who lived in Memphis, called the payor bank in Dearborn, Mich., & was allegedly told by the teller that if the payee arrived before 6:00 p.m. she would certify the check. HELD: "the alleged agreements merely amounted to preliminary discussions, invitations to deal, & estimates of the availability of funds rather than the firm & objective commitment that is required for contractual liability... the alleged promises to certify the checks & to make funds available were not supported by consideration". ("Consideration" means any consideration sufficient to support a simple contract. The drawer or maker of an instrument has a defense if the instrument is issued without consideration)

Releasing Liens in Bankruptcy

A bankruptcy discharge does not automatically eliminate liens on your property. Whether you can avoid a lien in bankruptcy depends on: -the type of lien -the value of the property -your exemptions, and whether you are filing for Chapter 7 or Chapter 13 bankruptcy

Defining Quitclaim Deed and Warranty Deeds

A deed can completely change the ownership of a piece of land. It can pass property from your hands to those of a new buyer, or from your parents to you. Although they both have the power to convey a piece of property from one person to another, they are not the same type of deed - nor do they instill the same protections to parties involved. --Quitclaim deed: an instrument of real property conveyance that passes any title, interest, or claim the grantor has in the property to another party. A quitclaim deed does not make any representations or guarantees as to the validity of such title, interest, or claim. --Warranty deed: an instrument of real property conveyances that transfers the title of property from the grantor to another party. In a warranty deed, the grantor promises that the title is clear of any claims. As you can see, the two deeds perform the same essential function: to transfer a title from one party to another. The provisions of each deed, however, are starkly different. One type of deed exposes the grantee to potential title ownership or claim conflicts while the other provides the greatest level of protection possible to grantees.

What is a Deficiency Judgment?

A deficiency judgment is a legal order to pay off a loan balance after foreclosure or repossession. When a lender takes your property and sells it, the sales proceeds pay off your debt and any additional fees related to collection. But if the property does not sell at a price that's high enough to satisfy the debt, you may still owe money. The remaining amount is called a deficiency, and a deficiency judgment from a court makes you personally liable for any deficiency balance. As a result, lenders or debt collectors can try to collect the amount due. Deficiency Judgment Example: When you default on a loan and the lender repossesses your property, the value of the property may not be enough to pay off the loan.

What is a fee simple?

A fee simple is an interest in property, often land, that has two unique characteristics: 1. The property *may* be possessed infinitely 2. *May* be inherited by one's heirs. A property interest is not a fee simple if either one of these qualities is not present. (a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. It is a way that real estate and land may be owned in common law countries, and is the highest possible ownership interest that can be held in real property) -An estate in fee simple denotes the maximum ownership in land that can be legally granted; it is the greatest possible aggregate of rights, powers, privileges and immunities available in land. The three hallmarks of the fee simple estate are that it is alienable, devisable and descendible. -To convey an estate in fee simple at common law, the deed or will must state "to B and his heirs." Anything short of those words transferred a smaller estate. Modern deeds usually follow a standardized form. There is a presumption that the testator intends to convey his or her property in fee simple unless the will indicates an intention to transfer a smaller estate, such as a life estate.

What is a fixture- breakdown

A fixture, as a legal concept, means any physical property that is permanently attached (fixed) to real property (usually land) -Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which—in the absence of language to the contrary in a contract of sale—is considered part of the land itself and not a separate piece of property. Generally speaking the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land the article is likely a fixture.

-Ex. Of the material man's (statutory) lien- homeowner ex.**

A mechanic's lien is a security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property. The lien exists for both real property and personal property. -With respect to real property, mechanic's liens are purely statutory devices that exist in every state The reason they exist is a legislative public policy to protect contractors. More specifically, the state legislatures have determined that, due to the economics of the construction business, contractors and subcontractors need greater remedy for non-payment for their work than merely the right to sue on their contracts. In particular, without the mechanics' lien, subcontractors providing either labor or materials may have no effective remedy if their general contractor is not sufficiently financially responsible, because their only contractual right is with that general contractor. Without the mechanic's lien, the contractor would have a limited number of options to enforce payment of the amounts owed. -Mechanic's liens on the title to real property are exclusively the result of legislation. -mechanic's liens under state law are invalid on federal construction projects. -Under the statutes, the lien is usually created by the performance of labor or the supplying of material that improves the property. -However, to have an enforceable lien, it usually must be "perfected." This means that the holder of the lien must comply with the statutory requirements for maintaining and enforcing the lien. These requirements, which contain time limits, are generally as follows: -Providing the required preliminary notice to the property owner disclosing the entitlement to the lien (some states). -Filing notices of commencement of work (some states). -Filing notices in the required public records offices of the intention to file a lien if unpaid (some states). -Filing the notice or claim of lien in the required public records offices within a specified period of time after the materials have been supplied or the work completed (all states). The law varies from state-to-state on both the triggering event and the timing of this. Some states require the filing within a period measured from the time when the claimant completes its work, while others specify the event as being after all work on the project has been completed. The filing time periods after the triggering event vary. -Mechanic's liens are enforced exclusively through judicial foreclosure sales, i.e., through court proceedings similar to mortgage foreclosures. The court must determine whether the requirements of the statute have been met and, if so, the priority of the mechanic's lien being foreclosed relative to the other liens or encumbrances on the title. Once that is determined, the court will order the property sold and the proceeds of the sale applied to the liens in the order of their priority.

What is a mortgage lien? facts

A mortgage is the security that lenders hold in support of a loan for the purchase of real estate. In common conversation, most people conflate mortgages with the actual loans made to purchase the real estate but, strictly speaking, a mortgage is not a loan. Instead, it is an interest in the real property held by the lender as protection in case the borrower should fail to pay back the loan. -In lien theory states, on the other hand, the borrower takes the legal title to the property while a lender holds a mortgage lien over it. A lien, you may recall, is a non-possessory security interest in a piece of property. In the case of a mortgage lien, it is an interest that a lender holds in real property that does not involve possession, but the property carries the encumbrance of the mortgage lien for the life of the loan. If the borrower attempts to sell the property before satisfying the debt, the mortgage lien will show up as a cloud on the title. The lien entitles the lender to step in and claim a portion of the proceeds sufficient to satisfy what is left of the loan before releasing the lien, which will clear the title and allow the sale to go forward. -Because lenders in lien theory states don't hold the legal title to property, they must go through a judicial process to either take title to the property or force a sale in the event that a borrower defaults on the loan. (-Mortgagee. Lender or holder of the security interest in the property; the lienholder; the mortgage servicer under certain conditions. -Mortgagor. Debtor, borrower and grantor of the security interest in the collateral; owner of the property.)

Partial disclosure

A partially disclosed principal will occur when the third party has notice that the agent is or may be acting for a principal, but has no notice of the principal's identity. This scenario differs from those of the disclosed and undisclosed principal because the agent here can remain liable to the third party if the third party believes the agent is the actual party, but remains clueless as to the principal's identity. (When an agent acts on behalf of a partially disclosed principal, the principal and the third party will be liable on contracts the agent makes, and the agent will also generally be liable unless otherwise agreed. The reason for making the agent liable as well is that the third party (who doesn't know the principal's identity) may be looking to the agent's creditworthiness or reliability for performance of the contract. There are exceptions in cases where the identity of the principal is such that the third party would not have entered into the contract had the principal's identity been known.)

Deed specified

A real estate contract typically does not convey or transfer ownership of real estate by itself. A different document called a deed is used to convey real estate. In a real estate contract, the type of deed to be used to convey the real estate may be specified, such as a warranty deed or a quitclaim deed. If a deed type is not specifically mentioned, "marketable title" may be specified, implying a warranty deed should be provided. Lenders will insist on a warranty deed. Any liens or other encumbrances on the title to the real estate should be mentioned up front in the real estate contract, so the presence of these deficiencies would not be a reason for voiding the contract at or before the closing. If the liens are not cleared before by the time of the closing, then the deed should specifically have an exception(s) listed for the lien(s) not cleared. The buyer(s) signing the real estate contract are liable (legally responsible) for providing the promised consideration for the real estate, which is typically money in the amount of the purchase price. However, the details about the type of ownership may not be specified in the contract. Sometimes, signing buyer(s) may direct a lawyer preparing the deed separately what type of ownership to list on the deed and may decide to add a joint owner(s), such as a spouse, to the deed. For example, types of joint ownership (title) may include tenancy in common, joint tenancy with right of survivorship, or joint tenancy by the entireties. Another possibility is ownership in trust instead of direct ownership.

Transfer by possession:

Abandoned v. Lost v. Mislaid -Abandoned- owner puts something somewhere/leaves it w no intent of ever coming back. No one owns it unless someone finds it. (owner intentionally relinquishes all rights) Mislaid- someone leaves something somewhere w intent to come back & get it (had forgotten ab it) Lost- involuntarily parted & ignorant of its location. -if abandoned the finder gets it, if its lost the original owners still own it, subject to the rights of the finder, if mislaid then even the finder doesn't get it (Terry v. Lock)** -Abandoned property is that to which the owner has intentionally relinquished all rights. Lost or mislaid property continues to be owned by the person who lost or mislaid it. When one finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner. --Terry v. Lock, 37 S.W.3d 202 (Ark. 2001) --Also: Franks v. Pritchett, 197 S.W.3d 5 (Ark. App. 2004)

Adverse Possession - overview

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. (allows a person to claim a property right in land owned by another. Common examples of adverse possession include continuous use of a private road or driveway, or agricultural development of an unused parcel of land)

Master-servant rule

Agency law rule of vicarious-liability under which a principal (or an employer) is responsible for the negligent acts of the agent (or employee). The principal is responsible even when the specific acts of the agent were unknown to him or her when they were committed. It's the principal's duty to supervise the agent's actions and set standards and limits on them.

Principal/Agent:

Agent works for the benefit of the principal and under its control. Agent has right to represent the principal and make contracts with 3rd parties on behalf of principal. HUGE responsibility and duty!

Real or Personal? Alex

Alex sold his house to Baker. Assuming that the contract is silent, which of the following would be considered part of the land (real property meaning that the buyer would get them? -azalea bushed in the front yard? = Generally speaking, all landscaping, or any type of plant with roots firmly ensconced in the ground, is considered a fixture. A fixture is not required to exist inside the house. ... Fixtures become real property when they are attached to the property. -the swimming pool in the back yard. = is fixture if its underground, but if hot tub or above ground pool its not a fixture -the ceiling fan in the kitchen. = is a fixture, yes -the window air conditional unit. = no, not a fixture -the chandelier in the dining room. = yes, is a fixture -curtains hanging? no

Fiduciary duty

All agency relationships are fiduciary relationships. This means the relationship involves a high level of trust and confidence between the principal and the agent. Because the principal has trusted the agent to supervise or protect the principal's property, the agent owes a fiduciary duty to the principal. This means the agent is obligated to act in the best interests of the principal.

How Can an Agency Relationship be Terminated?

An agency relationship is formed between two parties when one party (the agent) agrees to represent another party (the principal). A principal-agent relationship is fiduciary, meaning it is based on trust. Normally, all employees who deal with third parties are considered agents. As such, an agency relationship is governed by employment law. There are many ways to terminate an agency relationship. Once the relationship is terminated, the agent no longer has authority to act for the principal. The principal is required to inform third parties (that dealt with the agent) that the agency relationship has been terminated. Ways to terminate an agency relationship include: -Lapse of time: If the parties agree to set a time period for the agency relationship, the agency relationship terminates when the time period passes. For example, you hire a person to be your agent for one year. After one year passes, the agency relationship automatically terminates unless you extend it. -Purpose achieved: Some agents are hired to achieve a certain purpose. Once that purpose is achieved, the agency relationship is automatically terminated (but you can extend it). A prime example is when professional sports players hire an agent to only negotiate contracts. -Mutual agreement: Both parties can agree to terminate the relationship. If both parties agree to part ways, the reason for the termination does not matter. -Certain events: An agency relationship will automatically terminate upon the occurrence of certain events. Such events include death, insanity, or bankruptcy of either the principal or agent. A court of law will usually step in and terminate the agency relationship if one of the parties refuses to do so. Both parties may also specify particular events that can cause termination.

No authority

An agent acting w/in the scope of her authority is not liable to 3rd parties on obligations entered into on behalf on the principal. Even if the agent exceeds her express authority, her implied authority may bind the principal to the agreement & relieve her from any contractual liability to the 3rd party. The important point is that the agent must act on behalf of the principal & disclose that relationship to the 3rd party. If the agent is acting on behalf of a principal, but fails to disclose her agency status, it may subject her to liability to the 3rd party. In some cases, it may also serve to bind the principal once the agency relationship is determined. -Note: if the agent goes beyond her express authority, she may be liable to the principal for any obligations binding the principal to 3rd parties. That is, the principal may be able to recover damages suffered bc of the agent exceeding her authority.

No disclosure

An agent is not generally liable for contracts made; the principal is liable. But the agent will be liable if he is undisclosed or partially disclosed, if the agent lacks authority or exceeds it, or, of course, if the agent entered into the contract in a personal capacity. -UNDISCLOSED PRINCIPAL. In the Contract Law, the term undisclosed principal relates mainly to the liability of an agent for obligations incurred on behalf of a principal. ... In such a case, he becomes, as we have seen, personally liable to the third person. (An undisclosed principal occurs when the third party has no notice that the agent is acting for a principal. The principal in this scenario is authorizing the agent to act, and is therefore liable to the third party unless there is a side agreement between the agent and the third party. Here, courts seek to protect the agent from having to have to pay out for the liability entirely out of their pockets, especially when there is an understanding with his principal company that the company would bear the liability.)

PROPERTY LAW: EXPRESS EASEMENTS

An easement exists only if the parties do something to create one. According to property law, parties can create an easement in a number of ways, including by express agreement, implying an easement by their conduct, and acquiring an easement by prescription. To create an express easement, the parties can simply agree to create an easement. The statute of frauds generally requires written evidence of the easement; however, an agreement to create an easement may be enforceable under the doctrines of estoppel and part performance despite noncompliance with the statute of frauds. The grantor, or servient tenant, can simply sign an easement agreement that conveys the easement to the grantee, the dominant tenant. The parties also may create an easement in a deed that conveys the dominant or servient land. A deed may grant an easement to the grantee along with the land that it benefits, or the deed may reserve to the grantor an easement over the granted land. Some courts say that a deed can't reserve an easement for someone other than the grantor. So if the grantor wants to do so, he must reserve the easement for himself and then separately convey the reserved easement to the intended beneficiary.

Easement

An easement is a property interest that gives someone the legal right to use or own parts of the property owner's land. The person does not legally own or possess the land, but has the right to use it through an agreement with the owner. An easement does not enable the easement holder to exclude others from the property or occupy the land. The property owner may exclude anyone but the easement holder from the land. Understanding how easements may affect your property and its value can prevent major headaches as a landowner down the road. -There are many types of easements that may exist on a single piece of property. Conducting an in-depth public records search on the property can help potential landowners learn of easements before making a purchase. In most situations, easements will not decrease the value of the property. If the easement has strict rules or requirements the property owner must follow, however, it can affect property value and marketability. The more you know about the easements on a property, the more informed you'll be as a buyer.

Control

An intricate element of the principal-agent relationship is the concept of control. The agent agrees to act under the direction of the principal. The agent's authority may be actual or apparent. If the principal deliberately advises express and implied powers to the agent to act for him or her, the agent has actual authority. When the agent exercises actual authority, it is as if the principal is acting, and the principal is bound by the agent's acts and is legally responsible for them. If the principal either knowingly or mistakenly, authorizes the agent or others to assume that the agent holds authority to carry out specific actions when such authority does not exist, this is known as apparent authority. If other persons believe in good faith that such right exists, the principal remains liable for the agent's actions and is unable to rely on the defense that no actual authority was established. The scope of an agent's authority, regardless of whether it is apparent or actual, is considered in determining an agent's legal responsibility for his or her actions. An agent cannot be individually liable to a third party for a contract the agent has entered into as a representative of the principal if the agent acted within the scope of authority and contracted as agent for the principal. If it so happens that the agent exceeded his or her authority by entering into the contract, the agent is then financially responsible to the principal for failing to uphold the fiduciary duty.

Case 3: A retired high ranking gov't official gives a one time lecture at a well known SEC school, for which he's paid an "honorarium." Servant or independent contractor?

Ans: Independent contractor

Case 1: You pay a lawyer to help you with a DWI charge. Servant or independent contractor?

Ans: Independent contractor (he's not your servant- don't pay him benefits, pay him in full) (your not his employer- just paying to do you a job) (lawyer under someone else's supervision)

Legal or illegal? You copy a movie which is broadcast over TV so that you can watch it later.

Ans: Legal -- bc in the early days there used to be product (VHS or BetaMax)-- allows to record & watch later. If copy what's on tv, you are timeshifting- which is legal

CASE 4: Tom is the owner of a small business which he incorporated in order to obtain "limited liability." The company's name is "Arkansas Lawn Care, Inc." Tom made a purchase of supplies from an out of state vendor. He signed his own name to the contract, and did not tell the vendor that the business was incorporated. Later a corporate check was sent to the vendor for 20% of the payment, but the balance was never paid. Can Tom be held liable for the remaining 80%?

Ans: Yes, no disclosure Both the company AND tom can be held liable, because the company gave express authority and Tom had no disclosure

Homestead Protection Law in Arkansas: The Basics

Arkansas' homestead law originates from the state's constitution, but also is encoded in statute. The state allows a maximum exemption amount of $2,500 of one's equity, with a maximum of one acre (1/4 acre minimum) for urban properties and 160 acres if rural. Homestead Exemption: Amendment 79 provides a tax credit for property owners on their homestead (your primary residence) property. There are only two requirements for eligibility: - The property is your primary residence. - You are the owner of record. The credit is itemized on your Real Estate Tax bill as a credit toward the amount of your taxes due.

Case: Hoddeson v. Koos Bros., New Jersey, 1957***

BRIEF FACT SUMMARY: Plaintiff, Joan Hoddeson, brought an action against Defendant furniture store, Koos Bros., when Defendant refused to reimburse Plaintiff for money she gave an alleged salesman imposter at Defendant's store. ISSUE: The issue is whether Defendant can be held liable for the conduct of an impostor agent. SYNOPSIS RULE OF LAW: Absent proof of an agency relationship, a party may still have a duty of care for the other party to ensure that the other party is not disadvantaged in dealing with the party.

What is bankruptcy (legal def)?

Bankruptcy is a legal term for when a person or business cannot repay their outstanding debts. The bankruptcy process begins with a petition filed by the debtor, which is most common, or on behalf of creditors, which is less common. All of the debtor's assets are measured and evaluated, and the assets may be used to repay a portion of outstanding debt.

Why do we care about agency relationships?

Because it is the fundamental concept on which other business or other relationships are built, such as partnerships, corporations, trusts, and the like!

Uber cases:

Berwick v. Uber (Cal): Barbara B. sued Uber asking for reimbursement expenses. Cal. Labor Commission held that under Cal. Labor Code Uber IS an employer McGillis v. Uber (Fla): Darren M. filed for unemployment. The Dept. of Revenue ruled that Darren was NOT an employee O'Conner v. Uber: Cal. class action case (Uber drivers have filed a class action lawsuit claiming they have been misclassified as independent contractors and are entitled to be reimbursed for their expenses that Uber should have to pay, like for gas and vehicle maintenance. -is facing multiple state-specific lawsuits across the country that claim the ride-hailing company improperly classifies drivers as independent contractors. Plaintiffs in these lawsuits allege that they should be reclassified as Uber employees, a shift that would entitle drivers to benefits such as gas and mileage reimbursement, health insurance, and overtime pay. Uber class action lawsuit reached a tentative settlement, but a judge struck it down)

Notice-race system (ex.)

Bilbo sells Bag End to Frodo and conveys Bag End to Frodo on October 10 by deed. On October 15, Bilbo sells and conveys Bag End to Merry, also by deed. Merry did not know of the earlier sale to Frodo. Frodo records his deed on October 16. On October 18, Merry records his deed. On the one hand, Merry was a subsequent good faith purchaser for value. On the other hand, Frodo recorded his deed first. So, who wins? (feel that the more important policy concern is to encourage the prompt recording of deeds. Therefore, these jurisdictions will allow a second bona-fide purchaser to prevail against the first purchaser, if and only if, the second purchaser (Merry) recorded first, before the first purchaser (Frodo). These jurisdictions are known as "race-notice" jurisdictions. A typical "race-notice" statute will read something like this: "No conveyance is valid against a subsequent bona-fide purchaser who has no notice of the original conveyance and who has recorded the deed to his conveyance first." In other words, the second purchaser, to prevail, must be a bona-fide purchaser and must record his deed before the first purchaser does. Thus, in the above case, Frodo would prevail.)

The "lease": less than ownership interest

Combination of contract law & property law. Unless against public policy 1. Periodic tenancy & tenancy at will 2. If at will lease: either side can cancel upon one month's notice 3. If the contract is for term (Fixed Term tenancy), then notice should be given by either party 30 days** before the end of the term. if not, an argument can be made that the lease has been renewed for a term of equal length (i.e., another yr.. or whatever it was!) (same is true w a Periodic Tenancy-- the 30 days notice before it comes to an end**)! -Assignment of lease: both the original tenant & the assignee are liable -Sub-lease: the original tenant is still liable; the sub-lessee is liable only to the tenant

Patents

Constitution, Article 1, Sect. 8: "Congress shall have power... to promote the progress of science & useful arts by securing for limited times to authors & inventors the respective rights to their writings & discoveries..." (A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.) What kind of protection does a patent offer? In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner's consent.

Costs and Attorneys' Fees

Costs are typically recoverable and, in rare cases where there has been willful infringement, so are attorneys' fees.

Another requirement of the 2005 law:

Credit counseling: must get a statement from an accredited non-profit counseling agency that the consumer has been given such information

Trademarks

Def.: a word, name, symbol, design, product configuration, color, sound, or combination used to identify & distinguish the goods/services of one seller from those of another (very valuable in business world -how to obtain trademark: 1. Federal registration (not required) 2. State registration (only protection in state) 3. Common law (if don't register anywhere- will prolly be w common law))

Design Patent Protection (Protects Appearance)

Design patent applications are the least common type of patent application filed with the U.S. Patent Office. However, they can be easier and cheaper than utility patent protection. i. Benefits of Design Patents -Cheaper than utility patent. -Usually faster patent protection at the U.S. Patent Office (normally between 1-2 years). -If the main feature of the new product is the appearance (i.e. ornamental design), then a design patent will protect this main feature. ii. Detriments of Design Patents -Design patents do not protect the functional features of an invention (most inventions have functional features). -Design patents can be relatively easy to design around by simply changing the overall appearance of the competing product. -Difficult to protect different variations of product.

What Makes These Two Deeds So Different?

Despite both deeds serving the same general purpose, they are two very different documents with highly disparate end results. In fact, quitclaim deeds also go by the antithesis of warranty deeds: "non-warranty deeds." It is extremely important to recognize the differences between these two, and to select your type of deed wisely. This is because the warranty deed protects the grantee from title disputes while the quitclaim deed does not. Here are five main differences between quitclaim and warranty deeds to recognize: --A quitclaim deed only transfers the grantor's interests in a piece of real estate. It does not create any warranties on the title. Only whatever part of the land the grantor owns, if any, will transfer to the grantee. A warranty deed contains a guarantee that the grantor has legal title and rights to the real estate. --A quitclaim deed offers little to no protection to the grantee. It offers the least amount of protection out of any other type of deed. If the property has any prior claims to it, contains a defect, or has liens against it, the grantee has no legal options against the grantor. The grantee is accepting the title as-is, with zero guarantees that the title is clean - or even that the grantor actually has the right to conduct the conveyance. --A warranty deed, on the other hand, offers the greatest amount of protection to the grantee. It is proof that the grantor is promising a clean title, without any prior claims or demands from other parties. If property does end up having a defect, the grantee can sue the grantor for damages. Warranty deeds ensure that the grantor has the right to sell the property, and guarantees that there are no liens or encumbrances against the land. --Quitclaim deeds are simpler to exact than warranty deeds, and therefore more popular amongst family members or parties for whom warranty is not of concern. For example, quitclaim deeds are common tools in conveying property from one spouse to another after divorce. Quitclaim deeds do not come with the option to purchase title insurance, and therefore offer the lowest level of protection. --Grantors, or sellers, produce and sign warranty deeds during real-estate closings. Warranty deeds include full property descriptions and pledges that the grantor owns clear title to the property. The quitclaim deed is typically not part of traditional property sales. Instead, people use them to transfer property through wills or as gifts. Boundaries in quitclaim deeds may not be certain. (People typically only use quitclaim deeds to convey titles between friends or family members, while warranty deeds are more common between professional parties. If a title has a defect, a quitclaim deed might be the only way to legally transfer a piece of real estate.)

Para 12:

EARNEST(serious) MONEY: Seller authorizes and instructs Listing Firm to accept and deposit in Listing Firm's trust account all earnest Money received. Should a deposit of Earnest Money be forfeited, the money shall be divided as follows: Payment shall first be made of all direct expenses incurred in connection with the contemplated transaction, and the balance shall be divided one half to Listing Firm and one half to Seller..."

Para 9:

EXPIRED LISTING CONDITIONS: "Seller agrees to pay the professional fee set forth in Paragraph 7 to Listing Firm if the Property is sold or otherwise disposed of ... during a period of ___ days (the "Post-Term Period") after the Listing Period when information given by or obtained through Listing Firm during the Listing Period resulted in or contributed in any manner to the sale or disposal of the Property, regardless of procuring cause." ... However, if Seller employs another real estate firm as exclusive agent for marketing the Property after expiration of this Exclusive Right to Sell Agreement, Seller shall pay only one professional fee, and that to the currently employed real estate agent.." 30? days

Summary of the exceptions to the doctrine of "respondent superior":

Exceptions- Independent Contractors Respondeat superior applies to employees, but not to independent contractors. The Third Restatement of Torts helps to outline the difference between an employee and an independent contractor for the purpose of respondeat superior. It presents a fairly thorough balancing test: A subjective test with which a court weighs competing interests, e.g. between an inmate's liberty interest and the government's interest in public safety, to decide which interest prevails. -Federal employees- Under the Westfall Act, federal employees will not be held liable for wrongdoings committed during the scope of their employment.

Terry v. Lock***

FACTS: Appellants were hired by appellee to remodel a motel. As appellants were removing sheet rock, ceiling tiles, and other material in preparation for the renovations, they discovered a box above a ceiling tile containing a large amount of old currency. The box was given to appellee. Later, appellants filed a motion for a restraining order in the chancery court to prevent appellee from spending the money and claiming superior rights in the property. Appellants challenged the order of the chancery court characterizing found money as mislaid property and that appellee, as the owner of the premises where the money was discovered, held a superior interest in the money to that of appellants as finders of the money. The appellate court affirmed the judgment. RULE: A finder of mislaid property acquires no ownership rights in it, and, where such property is found upon another's premises, he has no right to its possession, but is required to turn it over to the owner of the premises. This is true whether the finder is an employee or occupier of the premises on which the mislaid article is found or a customer of the owner or occupant. CONCLUSION: "Mislaid property" referred to property intentionally put into a certain place and later forgotten. The place where money or property was found was an important factor in the determination of the question of whether it was lost or only mislaid. The right of possession, as against all except the true owner, was in the owner or occupant of the premises where the property was discovered, for mislaid property was presumed to have been left in the custody of the owner or occupier of the premises upon which it was found. Accordingly, the chancery court did not err when it found that the property in the present case was mislaid property and as such belonged to the owner of the premises in which the money was found.

Kelo v. the City of New London***

Facts of the case: New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Susette Kelo and others whose property was seized sued New London in state court. The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically, the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for New London. Question: Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy? Conclusion: No. The majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'"

Case 1: Cindy Farrar, age 17, was given her father's MasterCard & used it to sign up for one yr at the Swedish Health Spa. The next day she contacted the spa & told them that she intended to cancel. The Spa told her she could not cancel. A few wks later Mr. Farrar received his MasterCard bill, grumbled to his daughter, but paid the bill. 6 mos. later Mr. Farrar sued MasterCard for a refund. How would a court analyze this case?

Farrar v. Swedish Health Spa -Estoppels are not favored in Louisiana. To rely on estoppel, the spa would have to show that it had changed its position to its detriment in reliance on Farrar's action. There is no indication here of either justifiable reliance or a change in position, and the spa cannot avail itself of the doctrine of equitable estoppel. -The next issue presented is whether Farrar's payment of the Master Charge bill ratified the contract and prevents recovery of the amount paid, alleged to be in satisfaction of a natural obligation. The Louisiana rule as to ratification of contracts is as follows: "No intention to ratify will be inferred when the act can be otherwise explained . . . And in case of doubt the party against whom ratification or voluntary execution is claimed must have the benefit of the doubt." Farrar's payment of his Master Charge bill is an act that does not necessarily imply an intent to ratify Cindy's agreement. It can be otherwise explained. The trial court correctly concluded that Farrar is entitled to restitution of the sum paid. The spa has an obligation to repay it. "He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it." However, since it was Farrar and not Cindy who paid, we find that the judgment incorrectly gave judgment to both. Therefore, the judgment will be amended to omit the name of Cindy Farrar as a party entitled to judgment. Costs are taxed against the Swedish Health Spa.

What is a Design Patent?

Generally speaking, a design patent protects the way an article looks. An inventor would seek a design patent when they have a protectable design. A protectable design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. A design patent does not protect the mechanical structure, but rather protects the appearance. Henceforth, it is possible for many different styles to receive design protection, as the question is whether the presentation or appearance of the functional item is unique. Design patents are nice because they are typically cheaper and easier to receive than most utility patents. Additionally, a design patent usually takes 6-12 months to be awarded, where a utility patent can take much longer. The shortened amount of time to receive a design patent can be beneficial for inventors who want some sort of enforceable protection faster while they wait for on their utility patent applications during prosecution. Also, a design patent DOES NOT require any maintenance fees.

CASE 1: Alex is a real estate agent who has been retained by a client to find "40 acres in the country." Alex immediately locates some property that seems to be under-priced. He immediately has his sister purchase the property for $125,000. He then informs his client that the property is for sale for $150,000.

He and his sister split the profits!

The Implied Warranty of Habitability

Housing codes were established to ensure that residential rental units were habitable at the time of rental and during the tenancy. Most states have an implied warranty of habitability. This requires a landlord to substantially comply with building & housing code standards. If the lease contains a clause waiving the implied warranty of habitability, a court will typically refuse to enforce the clause. When the warranty of habitability is breached, courts will typically allow for 1 of 3 remedies: -The tenant will be able to withhold rent until the landlord repairs the property -The tenant will be able to withhold rent and can use the money to pay for repairs instead -The tenant will be able to sue for damages

Ex. no authority

I work for ABC Corp. I entered into an agreement with 123 Corp on behalf of ABC Corp. I'm not personally obligated to perform the contract. If I fail to tell 123 Corp that I work for ABC Corp (123 Corp believes that I have my own business), I am liable to 123 Corp if ABC Corp doesn't perform the contract. ABC Corp is obligated to perform the contract if my entering the contract was in my express, implied, or apparent authority. If I didn't have express/implied authority, but 123 Corp realized I was acting on behalf of an agent, ABC Corp may be liable if I had apparent authority. In such a situation, ABC Corp may be able to sue me for any losses suffered.

Avoiding Liens in Chapter 13 Bankruptcy

If certain conditions are satisfied, you can reduce the principal balance of some liens through a cramdown in Chapter 13 bankruptcy. The most common example of this is a car loan cramdown that reduces your loan balance to the value of the car. But you can also cram down liens on other personal property as well as mortgages on rental or investment properties (but not your principal residence). In addition, if you have a wholly unsecured second mortgage or other junior lien on your house (including your principal residence), you can get rid of it through a process called lien stripping in Chapter 13 bankruptcy. When you strip a junior lien, it is treated as an unsecured debt (like medical bills or credit cards) in your bankruptcy. Upon completing your repayment plan and receiving a discharge, the creditor is required to remove its lien from the property. However, to strip the lien, the balance of your first mortgage or other senior lien must exceed the value of the property. Example: Joan owns a house worth $300,000. She has a $325,000 first mortgage and a $75,000 second mortgage on the property. Because her first mortgage balance exceeds the value of the house, her second mortgage is wholly unsecured. If Joan files for Chapter 13 bankruptcy, she can get rid of her second mortgage through lien stripping. When she completes her bankruptcy and obtains a discharge, the second mortgage will be extinguished and only the first mortgage lien will remain on the house.

Case: Kristie's Katering, 35 S.W.3d 807 (Ark. Ap. 2000)

If the agent deliberately harms a third person, this probably will not result in "respondeat superior." Exceptions: Kristie's Katering, Inc., appeals a decision of a Pulaski County jury awarding Nasser Ameri $16,000 for injuries he claimed he sustained at the hands of security guards at one of Kristie's night clubs, the Discovery club. Kristie's argues that the trial court erred in denying Kristie's motion for judgement. -Said that the security personnel hired almost always had experience in the field & they were all expected to use common sense in trying to maintain calm at the club... The evidence offered by Ameri relating to the incident was clearly sufficient to enable the jury to conclude that both security guards were acting in the course of their employment by Kristie's & in furtherance of Kristie's interests. Ameri proceeded at trial on the theory that Kristie's was negligent in failing to monitor, properly train, or supervise its security force.. this theory is completely separate from the respondeat superior theory of vicarious liability bc the cause of action is premised on the wrongful conduct of the employer, such that the employer's negligence was the proximate cause of the plaintiff's injuries... We think that the evidence that Kristie's owner provided no formal training, no training manuals, materials/workbooks, & that there existed no written rules/regulations governing the conduct of security guards in ejecting patrons, couple w the evidence of the frequency of occurrences requiring such action, was sufficient evidence for the jury to conclude that Kristie's was negligent in its failure to provide adequate supervision of the guards. Affirmed.

Bankruptcy "Clawback" Provision

If you pay back preferred creditors or transfer property out of your name prior to filing for bankruptcy, the bankruptcy trustee may be able to void (undo) that transaction and get the property back for the benefit of your unsecured creditors. This is referred to as the bankruptcy "clawback" provision. Read on to learn more about the clawback provision in bankruptcy. When Can the Bankruptcy Trustee Use the Clawback Provision?: The trustee has the power to void fraudulent or preferential transfers made prior to bankruptcy and recover that money or property for your unsecured creditors.

CH. 7 vs. CH. 13

If you're in serious debt and can't keep up with repaying loans and credit card bills, Chapter 7 and Chapter 13 bankruptcy are the two most common programs you can use to reduce or eliminate your debt. -Chapter 7 bankruptcy is known as a liquidation bankruptcy. Most of your property is sold and used to pay off your debts. Chapter 7 bankruptcy is generally meant for people with limited incomes who do not have the ability to pay back all or some portion of their debts. Chapter 13 bankruptcy is referred to as a reorganization bankruptcy. Your property is not sold when you file for Chapter 13 protection, and if you successfully complete a court-mandated repayment plan, you may be able to keep your property. After completing the repayment plan in which you pay your creditors a portion of the outstanding debt over a fixed period of time, any remaining unsecured debts—such as credit cards and medical bills—may be "discharged." When debt is discharged, it means you're no longer required to pay back the debt.

Avoiding Liens in Chapter 7 Bankruptcy

In Chapter 7 bankruptcy, you can avoid certain types of liens if they impair your bankruptcy exemptions. Chapter 7 bankruptcy allows you to remove the following liens from your property if they impair an exemption you would otherwise be entitled to: judicial liens (meaning a lien that arises out of a court judgment), and nonpossessory, non-purchase-money liens on certain assets such as household goods and furnishings, clothing, jewelry, and tools of your trade (up to $6,225). But keep in mind that you cannot avoid statutory liens (such as a tax lien) or consensual liens (such as a mortgage) on your home or your car in Chapter 7 bankruptcy. Also, simply filing for Chapter 7 bankruptcy does not get rid of liens. To avoid a lien in Chapter 7 bankruptcy, you must file a motion with the court and obtain a court order.

The case that "changed the law" in AR:

In Re Holt, 8th Circuit Court of Appeals, 1990:*** In AR: federal bankruptcy exemptions available. -In 1990, the 8th Circuit Court of Appeals declared ARs' bankruptcy exemption statute unconstitutional for bankruptcy purposes as it relates to personal property. The court said that the AR Constitution's provision of a $200 exemption for any personal property ($500 if married) acted as a cap & overrode the more generous exemption amounts in the statute. The personal property exemptions may be used in a non bankruptcy context, however.

What is a Utility Patent?

In general terms, a utility patent protects the way an invention functions, and how it is used. You can be awarded a utility patent when you invent a new process, machine, manufacture, composition of matter, or any improvements thereof A utility patent protects the structure, composition, or function of an invention, and generally lasts 20 years from the earliest filing date. This type of patent can protect a physical device, a step-by-step method (such as software or method of manufacturing), compositions of matter (chemical or biological), and a unique assembly (manufacturer). Utility patents are advantageous over design patents because they protect the function of an article, in other words how an article is used. The design of said article can change and still be protected by the utility patent as long as the claimed function is still present. The beauty of utility patents is that it can cover MANY different embodiments of your invention, and even other applications in industries outside of your own. However, there are some downsides to a utility patent. A utility patent tends to be more expensive and difficult to obtain than a design patent. An applicant for a utility patent should expect the Patent Office to initially reject their utility patent application and should expect to respond to at least one rejection before their application is possibly allowed. Additionally, maintenance fees must be paid every 3-1/2, 7-1/2, and 11-1/2 years after the patent issues.

Bankruptcy Discharge Can Eliminate Your Deficiency Judgment

In general, a mortgage deficiency judgment is treated like any other general unsecured debt (such as medical bills) in bankruptcy. This means that whether you file for Chapter 7 bankruptcy or Chapter 13 bankruptcy, once you receive your discharge your personal liability for a mortgage deficiency will be wiped out. But keep in mind that if the mortgage lender has already placed a lien on any of your other property, your discharge will not automatically get rid of that lien. In that case, you will need to file a separate motion with the court to avoid the lien.

Prescriptive Easement

In some cases, an individual needs another's land for a specific purpose. For example, using the driveway for accessing the individual's own home or a path that acts as a shortcut. If this is the case, the individual can receive an easement by using or occupying the land for a set number of years. The minimum amount of time varies from state to state. It may take 10 or 20 years of using the other person's land to receive a prescriptive easement. The timeline is often the same for adverse possession, or when someone gains legal property ownership by occupying the land. A prescriptive easement differs from adverse possession in a few important ways. The government does not require property taxes on a prescriptive easement claim, but may require trespassers to pay taxes on land they legally own by occupation. The trespasser doesn't have to be the only one using the land to receive a prescriptive easement - more than one person can acquire these easements on the same piece of land. A property owner can prevent a prescriptive easement by giving the individual the right to use the property.

Equitable Relief

Injunctions are orders issued by a court ordering someone to do something or prohibiting some act. Injunctions are available in two forms: -Preliminary injunctions-Court orders made in the early stages of a lawsuit or petitions which prohibit the parties from doing an act which is in dispute (e.g. manufacturing patented product) -Permanent injunctions-Final orders of a court that a person or entity discontinue doing certain activities permanently or take certain actions Preliminary injunctive relief is granted if the patent owner can demonstrate a high probability of winning the case and a permanent injury sustained in the absence of injunctive relief. The patent owner must also make a "clear showing" of validity, including: -Prior judicial ruling(s) regarding patent validity -Long-standing acceptance of validity by others within the industry -If the patent's validity is clearly shown by its technical framework Unless contrary to pubic interest, permanent injunctive relief is commonly awarded to the prevailing patent owner.

Equitable Relief

Injunctions are orders issued by a court ordering someone to do something or prohibiting some act. Injunctions are available in two forms: Preliminary injunctions - court orders made in the early stages of a lawsuit or petitions which prohibit the parties from doing an act which is in dispute (e.g. stopping publication of infringing work) Permanent injunctions - final orders from a court that a person or entity permanently discontinue doing certain activities or take certain actions Preliminary injunctive relief is granted if the copyright owner can demonstrate a high probability of winning the case. Unlike in trademark and patent cases, the copyright owner need not show a permanent injury sustained. The court also may allow the seizure, impoundment, and/or destruction of any infringing copies. It is within the court's discretion whether or not to grant permanent injunctive relief, although it is often awarded to the prevailing copyright owner.

Intangible Assets

Intangible assets are typically nonphysical assets used over the long-term. Intangible assets are often intellectual assets, and as a result, it's difficult to assign a value to them because of the uncertainty of the future benefits. Intangible assets are intellectual property that include: Patents Trademarks Franchises Goodwill Copyrights A company's brand Other Types of Intangible Assets: Depending on the type of business, intangible assets may include internet domain names, performance events, licensing agreements, service contracts, computer software, blueprints, manuscripts, joint ventures, medical records, permits, and trade secrets. Intangible assets add to a company's possible future worth and can be much more valuable than its tangible assets. -Brand equity is considered to be an intangible asset because the value of a brand is not a physical asset and is ultimately determined by consumers' perception of the brand. A brand's equity contributes to the overall valuation of the company's assets as a whole.

FEE SIMPLE VS. LEASEHOLD

It is important to know the difference between fee simple and leasehold, especially if you're buying real estate in a leasehold state such as Hawaii along with a few other states in the US.The difference in these two types of land tenure is very different and affects the value of the real estate. -FEE SIMPLE: Fee simple is sometimes called fee simple absolute because it is the most complete form of ownership. A fee simple buyer is given title (ownership) of the property, which includes the land and any improvements to the land in perpetuity. Aside from a few exceptions, no one can legally take that real estate from an owner with fee simple title. The fee simple owner has the right to possess, use the land and dispose of the land as he wishes: sell it, give it away, trade it for other things, lease it to others, or pass it to others upon death. -LEASEHOLD: A leasehold interest is created when a fee simple land-owner (Lessor) enters into an agreement or contract called a ground lease with a person or entity (Lessee). A Lessee gives compensation to the Lessor for the rights of use and enjoyment of the land much as one buys fee simple rights; however, the leasehold interest differs from the fee simple interest in several important aspects. First, the buyer of leasehold real estate does not own the land; they only have a right to use the land for a pre-determined amount of time. Second, if leasehold real estate is transferred to a new owner, use of the land is limited to the remaining years covered by the original lease. At the end of the pre-determined period, the land reverts back to the Lessor, and is called reversion. Depending on the provisions of any surrender clause in the lease, the buildings and other improvements on the land may also revert to the lessor. Finally, the use, maintenance, and alteration of the leased premises are subject to any restrictions contained in the lease. During the lease term, typically there is a lease rent to be paid and there may be periodical increases throughout the term. -The Lease rent is a fee that is in addition to the condominium association maintenance fees and local property taxes. The asking prices for leasehold properties are typically less than an equivalent property that is fee simple.

Monetary relief

Monetary relief, in the form of compensatory damages, is available to remedy patent infringement: -Compensatory damages- A patent owner may recover lost profits for infringement once they have established the value of the patent -Increased damages- Up to three times the compensatory damages can be recovered in cases of willful or deliberate infringement -Time period for damages- Rights to damages can be claimed only after the date the patent was issued and extends back only 6 years from filing of the infringement claim

Independent Contractor (extra facts)

Not every contract for services necessarily creates a master-servant relationship. There is an important distinction made between the status of a servant and that of an independent contractor. According to the Restatement (Second) of Agency, Section 2, "an independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." As the name implies, the independent contractor is legally autonomous. A plumber salaried to a building contractor is an employee and agent of the contractor. But a plumber who hires himself out to repair pipes in people's homes is an independent contractor. If you hire a lawyer to settle a dispute, that person is not your employee or your servant; she is an independent contractor. The terms "agent" and "independent contractor" are not necessarily mutually exclusive. In fact, by definition, "... an independent contractor is an agent in the broad sense of the term in undertaking, at the request of another, to do something for the other.

The Doctrine of Respondeat Superior

One type of vicarious liability is respondeat superior, which means "let the master answer."When respondeat superior applies, an employer will be liable for an employee's negligent actions or omissions that occur during the course and scope of the employee's employment. This means that the employee must be performing duties for the employer at the time of the negligence for the employer to be held liable under respondeat superior. For example, when a truck driver's negligence results in a truck accident, a person injured in the accident may be able to bring the truck driver's employer, usually a trucking company, into the lawsuit. This can make a big difference as to whether the victim of the accident actually recovers all of his or her damages after obtaining a judgment. A plaintiff need not show that the employer was independently negligent but must prove there was an employment relationship. In some cases, trucking companies designate their truck drivers as independent contractors, hoping to avoid liability. Respondeat superior only applies to employment relationships, not the relationship between a company and an independent contractor. However, most courts consider multiple factors when determining whether an employment relationship exists for purposes of applying vicarious liability. In most jurisdictions, an employer can be vicariously liable for an employee's negligence but will not be liable for intentionally wrongful or criminal acts, such as assault, unless the employee's intentionally wrongful acts were either required by the employment or foreseeable. In general, even if an employee does act outside the scope of employment, an employer can be held liable in some jurisdictions if it subsequently ratifies the wrongful actions. The question that must be answered in respondeat superior cases is whether the employee's acts were in furtherance of the employer's interests. For example, in some jurisdictions, when a clergyman sexually molests a child while ostensibly attempting to counsel him or her during overnight church activities, the religious institution has been held vicariously liable. In other jurisdictions, the religious institution will only held liable if it knew or should have known of the molestation and failed to take precautions to prevent it.

What Can One Recover if their Patent Has Been Infringed?

Patent infringement is the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining the owner's permission by contract, license or waiver. There are several remedies available to patent owners in the event of infringement. These remedies include monetary relief, equitable relief, and costs and attorney's fees.

Personal Property

Personal property includes possessions, of really any kind, as long as those possessions are movable and owned by someone. Personal property isn't affixed to or associated with land. These moveable items are sometimes known as chattels. The law regarding chattels includes those laws covering possession, gifts, lost property, abandoned property, and stolen property. It's helpful to note that personal property includes both tangible and intangible items. A tangible item is an item that can be felt or touched. For a business, tangible personal property includes items the business owns such as: -Office furniture -Business equipment -Business vehicles -Business goods An intangible item is simply an item that can't be felt or touched. For a business, intangible personal property includes items the business owns such as: -Stocks -Bonds -Intellectual property -Money (Personal property is all property that isn't real property.)

Preferential Transfers

Preferential transfers include certain payments or transfers of property to creditors made prior to filing for bankruptcy. For example, paying back a loan from your parents just before you file for bankruptcy will typically be considered a preferential transfer. Whether the trustee can void a transfer and claw back the property depends on the value, timing, and recipient of the payment. Here are the rules: Payments or transfers made within 90 days of bankruptcy. If, in the 90 days preceding your bankruptcy, you transferred money or property worth over $600 in aggregate to one of your creditors while you were insolvent (meaning you had more debts than assets) and that payment resulted in the creditor getting more than it would have been entitled to through your bankruptcy, it is considered a preferential transfer. In most cases, the trustee doesn't have to prove your insolvency because bankruptcy law automatically presumes that debtors are insolvent during the 90 days prior to their filing date. Payments or transfers to insiders. The same rules discussed above also apply to transfers of money or property to insiders (such as friends, family members, or business partners). However, instead of 90 days, the transfer will be considered preferential even if made within one year prior to your bankruptcy filing date.

Vicarious Liability/Respondeat Superior

Public policy dictates in certain situations that one person or entity should be liable for the acts or omissions of another person or entity. Vicarious liability is a form of secondary or indirect liability that is imposed when parties have a particular relationship, usually an agency relationship. When it is applicable to a particular situation, a principal is required to answer for an agent's negligent or otherwise wrongful actions. Vicarious liability is often applicable to employer-employee relationships, but it is also applicable to other situations where a superior is held responsible for the acts of a subordinate. It can apply whenever a third party has the right and duty to control the activities of the negligent person. For example, in many jurisdictions, a car owner can be held vicariously liable for a negligent driver who was running an errand or otherwise doing work for the owner of the car and got into a car accident. In general, car rental companies cannot be held responsible for the negligence of drivers who rent their cars. On the other hand, in some jurisdictions, parents can be held vicariously liable for their children's torts. What distinguishes vicarious liability from other theories of liability is that it can be imposed irrespective of participation in the wrongful act. The principal whose liability is based on an agent's liability is not considered a joint tortfeasor with the agent and is not independently liable.

Notice-race system

Race-notice acts: The most common type of recording act is the race-notice act, which combines the requirements of the notice and race acts. That is, a prior interest is void against a later interest if the later interest holder paid value without notice of the prior interest and recorded her interest first. (*Whoever records the sale is the rightful owner-- good faith*) A race-notice statute may say something like this: "Every conveyance of real property is void as against any subsequent purchaser or mortgagee of the same property, in good faith and for a valuable consideration, whose conveyance is first duly recorded."

Easement by Necessity

Sometimes easements are unavoidable; for example, a neighbor who has to cross through your property to get to his/her own house. In situations where access to a piece of land must go through your private property, an easement by necessity may come into existence. The property owner does not have the right to stop these easements, as this would encroach on the neighbor's legal rights. Where land gets divided, easements by necessity occur the most often.

State homeland protection laws

State homestead protection laws are intended to help struggling homeowners avoid losing their primary residence when seeking bankruptcy protection by declaring a portion of their property a "homestead." Additionally, the federal government also has homestead exemptions for property owners who declare bankruptcy, but you must choose either state or federal homestead protection (not both). Basically, homestead laws prevent homes from being forced into a sale to satisfy debts when the homeowner goes bankrupt, as long as the exemption is for one's primary residence. States limit the exemption amount by acreage and/or equity amount, usually providing a larger exemption limit for rural properties.

Statute of limitations/conclusion

Statute of Limitations A typical statute requires possession for 7 years, if under color of title, or 20 years if not. The threshold, however, varies by jurisdiction. Conclusion A mnemonic may help one remember the elements of adverse possession: think of it as inchoate ownership which becomes "CHOATE." That is: -Continuous -Hostile -Open -Actual -for the requisite period of Time (the statute of limitations) -Exclusive

Mechanics' and Materialman's liens

Statutory liens granted in some states to specifically describe persons who provide goods or services contributing to the improvement of real property under a contract with the owner or the owner's representative, such as a general contractor. Such a lien will attach in favor of subcontractors even if the owner paid the general contractor, but the general contractor did not pay the subcontractors. It can take priority over a mortgage if the work was started before the mortgage was recorded, even if the lien document was not filed until after the mortgage was filed. Most statutes grant a very short time after nonpayment for the lien documents to be filed, or the lien will be lost. After that, one claiming under the lien must promptly take steps to foreclose the lien, or it will be lost. Property owners may protect themselves in some states by posting notices of non-responsibility on the property, advising all subcontractors and vendors that they must look only to the general contractor for payment.

Assignment & Sublease

Subject to limitations expressly stated in a lease, a tenant is typically able to transfer her property interest to a third party. This transfer takes the form of two different actions: Assignment - The tenant conveys her entire interest in the property to the third party. The third party effectively becomes the new tenant. Sublease - The tenant conveys her interest to the third party, but the tenant maintains a revisionary interest. The tenant becomes the sublessor, and the third party becomes the sublessee. What the "revisionary interest" means is that, under certain agreed-upon conditions, the interest in the property will revert back to the sublessor. When this happens, the sublessee will no longer have an interest in the property.

Tangible Assets

Tangible assets are physical and measurable assets that are used in a company's operations. Assets like property, plant, and equipment, are tangible assets. These assets include: Land Vehicles Equipment Machinery Furniture Inventory Securities like stocks, bonds, and cash There are two types of tangible assets: Current assets include items such as cash, inventory, and marketable securities. These items are typically used within a year and, thus, can be more readily sold to raise cash for emergencies. Fixed assets are noncurrent assets that a company uses in its business operations for more than a year. They are recorded on the balance sheet as Property, Plant, and Equipment (PP&E), and include assets such as trucks, machinery, office furniture, buildings, etc. The money that a company generates using tangible assets is recorded on the income statement as revenue. Fixed assets are needed to run the business continually.

Termination of agency contracts

Termination of the agency relationship must be in accordance with the agency contract that initially fashioned the principal-agent relationship. A principal can retract an agent's authority at any time, but may be liable for damages if the termination violates the contract. Other happenings such as the death, mental state, or bankruptcy of the principal also end the principal-agent relationship by operation of law

Monetary damages

The Copyright Act provides for the recovery of two types of monetary relief, actual damages and statutory damages. Actual damages include: Lost profits resulting from the infringement Infringer's profits Up to $100,000 for willful (i.e., deliberate) infringement Instead of seeking actual damages, a copyright owner may opt for statutory damages which typically range from $500 to $20,000 per infringement. The court may decide to increase the fine to $100,000 in cases of willful infringement. Registration of the copyright prior to infringement is a requirement. Punitive damages are generally not recoverable in copyright infringement cases.

History & breakdown of the DMCA

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO): the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues. --was signed into law for the purpose of adapting copyright law to a new digital climate. The DMCA consists of five titles directed at protecting copyrights. Title I implements the World Intellectual Property Organization (WIPO) treaties. Title II limits the liability of online service providers against copyright infringement if they abide by the safe harbor guidelines. Title III permits copies of computer programs for the purpose of repairing a computer. Title IV contains six miscellaneous provisions which 1) explain and increase the duties of the Copyright Office, 2) exempt digital transmission recordings, 3) facilitate distance education, 4) expand the archiving methods allowed by libraries, 5) create an exception for web-casting, and 6) address concerns about the payment of actors, directors and writers when movies are exploited. Title V protects boat hull designs. One of the DMCA's most significant changes protects service providers from copyright liability stemming from the infringement by their users. This protection, called a "safe harbor," only applies to those who qualify as a "service provider" as defined by the DMCA, and only if specific eligibility requirements are met. The safe harbors obligate service providers to assist copyright owners in the prevention of infringing conduct and set certain standards for DMCA compliance. -The safe harbors relate to four separate service provider operations, including: 1) transitory communications, 2) system caching, 3) storage of information on systems or networks at direction of users, and 4) information location tools. -The intent behind DMCA was to create an updated version of copyright laws to deal with the special challenges of regulating digital material.

Creation of the Agency Relationship:

The agency relationship can be created in two ways: by agreement (expressly) or by operation of law (constructively or impliedly). (An agency relationship is generated by the consent of both the agent and the principal. No person can unwittingly become an agent for another. A written contract is common, but not necessarily essential when it is clear that both parties intend to act in their respective principal and agent roles. The intent of the parties can be inferred from their words or implied by their actions.)

Basics/background

The basis of the legal relationship between a landlord and tenant is grounded in both contract and property law. The tenant has a property interest in the land (historically, a non-freehold estate) for a given period of time before the property interest transfers back to the landlord.

Copyright law overview

The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1923, is generally considered public domain. United States copyright law was last generally revised by the Copyright Act of 1976, codified in Title 17 of the United States Code. The United States Constitution explicitly grants Congress the power to create copyright law under Article 1, Section 8, Clause 8, known as the Copyright Clause. Under the Copyright Clause, Congress has the power, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The United States Copyright Office handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law. The goal of copyright law, as set forth in the Copyright Clause of the US Constitution, is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. This includes incentivizing the creation of art, literature, architecture, music, and other works of authorship. As with many legal doctrines, the effectiveness of copyright law in achieving its stated purpose is a matter of debate. Copyright law protects the "expression" of an idea, but copyright does not protect the "idea" itself. This distinction is called the idea-expression dichotomy. The distinction between "idea" and "expression" is fundamental to copyright law. From the Copyright Act of 1976 (17 U.S.C. § 102): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work

An Agency relationship is:

The fiduciary relation which results from the manifestation of consent by one person to another that the other person shall act in his behalf and is subject to his control; and consent by the other so to act.

Real Property

The key difference between personal property and real property is that real property is fixed permanently to one location. This includes land and anything that is built on the land. It also includes anything that's growing on the land or that exists under the face of the land. For a business, real property includes immovable property that the business owns, such as: -Land -Buildings -Crops -Mineral rights For example, let's say that I'm in the farming business; I own a large piece of land. On the land, I have a house, a barn, a grain silo, and a stable. Each of these items is a piece of real property, bc they are attached to the land. -Real property describes land and things that are attached to the land, which is why land is sometimes called real estate or realty. Even though wood, steel, and other building materials aren't land themselves, when they're built into structures attached to the land, they become real property, too. Trees and other plants naturally growing on the land are also part of the real property. But plants that require regular human cultivation and labor, such as grains and vegetables, sometimes aren't treated as part of the real property.

Quiet Enjoyment

The landlord-tenant relationship is founded on duties proscribed by either statutory law , the common law, or the individual lease. Basic to all leases is the implied covenant of quiet enjoyment. This covenant ensure the tenant that his possession will not be disturbed by someone with a superior legal title to the land including the landlord.

Mailbox rule:

The principle that an acceptance becomes effective, and binds the offeror, once it has been properly mailed. -offer can be revoked at any time (the person who offered), but is accepted when mailed. In order to be effective upon dispatch, the acceptance must be sent in a timely and proper manner. As far as timeliness goes, if no time period for acceptance is specified by the offeror, the offeree must respond within a reasonable period of time. If a period of time is specified, the general rule is that the time period begins running when the offeree receives the offer. For example: On April 1st, Ramon Garcia sends a letter to the Boston Red Sox offering to play for them for $500,000 per season. The offer states that the team has one week to accept the offer. The Red Sox receive the offer on April 4th. Under the general rule, the team will have one week from the date they received the offer to accept. Therefore, the team will have until April 11th before their right to accept lapses. Again, the determining issue here is when the acceptance is mailed out, not when it is received by the offeror. Therefore, if an acceptance is dispatched within the appropriate time period, a valid contract had been formed even if the offeror receives the acceptance after the time period lapses. For example: On April 1st, Ramon Garcia sends a letter to the Boston Red Sox offering to play for them for $500,000 per season. The offer states that the team has one week to accept the offer. The Red Sox receive the offer on April 4th and, on April 10th they send Garcia an acceptance of his offer. Garcia receives the acceptance letter on April 15th. Although Garcia received the acceptance four days after the deadline for acceptance passed, a valid contract has been formed because the Red Sox dispatched their acceptance within the stated time period. (Please note however, that an offeror can specify the particular means that the offeree must use. So, for example, if an offeror specifies that the offeree must accept via fax, any acceptance other than via fax will be invalid.)

Easements: less than ownership interest

The right to make limited use of property. Ex.: right of ways. Goes with the land (both as to dominant & servant estates) Ways to create: 1. Express (in the deed) 2. Necessity (if landlocked) 3. Prescription: by use that is open & notorious, & for the required length of time

When to File Both a Design Patent Application and a Utility Patent Application

There are situations when an invention can receive adequate patent protection with a utility patent and a design patent. If your invention has a unique structure/function coupled with a unique ornamental design, then you should consider filing both a utility patent application and a design patent application. This can be a difficult situation and it is recommended that you speak with a patent attorney prior to choosing this path. Both design and utility patent applications will provide you with "patent pending" while they are pending at the Patent Office.

Property

There are two types of property. In legal terms, all property will be classified as either personal property or real property. This distinction between types of property comes from English common law, but our modern laws continue to distinguish between the two. Each type of property is treated differently under the law. -Personal property is movable property. It's anything that can be subject to ownership, except land. Real property is immovable property - it's land and anything attached to the land. Ex.: Let's say that I buy lumber and other building supplies, such as a saw, a hammer, and some nails. These supplies are personal property. They're moveable and they belong to me. Next, I use these items to build a shed on my land. Is this shed personal property? No. The shed is real property because it's attached to, and now part of, my land. Any leftover building supplies are still personal property, like my saw and hammer. But anything that's actually part of the shed is now real property.

Tenancy at Will

There is no fixed ending period. The relationship continues for as long as the tenant and landlord desire.

Distinction btwn the 2

This distinction between agent and independent contractor has important legal consequences for taxation, workers' compensation, and liability insurance. For example, employers are required to withhold income taxes from their employees' paychecks. But payment to an independent contractor, such as the plumber for hire, does not require such withholding. Deciding who is an independent contractor is not always easy; there is no single factor or mechanical answer. -The factual situation in each case determines whether a worker is an employee or an independent contractor. Neither the company nor the worker can establish the worker's status by agreement. -In addition to determining a worker's status for tax and compensation insurance purposes, it is sometimes critical for decisions involving personal liability insurance policies, which usually exclude from coverage accidents involving employees of the insureds.

Trademark- protects

Trademark is a complex form of intellectual property. The owner of a trademark does not own a word or an image but rather the use of it to identify the source of goods or services. Knowing what your trademark protects, and how to use it, is the key factor in maintaining your trademark. When you first apply for a registered trademark, you must file a trademark statement of use with the application. The statement is proof that the trademark is actually in use in commerce. The requirement to show actual use of the mark is important, as provided in the statement of use. Trademark protects the use of a mark to identify the source of goods and services. If the trademark is not being used, then it should not be protected. Trademark protection is not meant to warehouse interesting brands for future, possible use.

Case: Kanelles v. Locke

Trail Court: judgement for defendant Agency — Negligence — Responsibility for Apparent Authority. — The defendant owned and operated a hotel where the plaintiff applied and was assigned to a room by a person apparently in charge of the office. The plaintiff deposited his valuables with him and obtained a receipt, acting pursuant to the usual statutory notices there posted. The person absconded with the plaintiff's property. It appeared that he was not in the employ of the defendant, but had been a roomejr in the hotel. The plaintiff sues to recover the value of the things deposited. Held, for the plaintiff, on the ground that the defendant, because of negligence, was estopped to deny that the imposter had received the deposit as her agent.

Common law requirements

Typically, for an adverse possessor to obtain title, his possession of the property must be: ---Continuous--A single adverse possessor must maintain continuous possession of the property. However, the continuity may be maintained between successive adverse possessors if there is privity between them. ---Hostile--In this context, "hostile" does not mean "unfriendly." Rather, it means that the possession infringes on the rights of the true owner. If the true owner consents or gives license to the adverse possessor's use of the property, possession is not hostile and it is not really adverse possession. Renters cannot be adverse possessors of the rented property, regardless of how long they possess it. ---Open and Notorious--Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession. One will not succeed with an adverse possession claim if it is secret. ---Actual--The adverse possessor is actually in possession of someone else's property. The true owner has a cause of action for trespass, which must be pursued within the statute of limitations. ---Exclusive--The adverse possessor does not share control of the property with any one else (unless in privity with himself). He excludes others from possession, as if he was actual owner.

A final comment on cashier's checks...

UCC 3-312: "...declaration of loss means a written statement, made under penalty of *perjury*, to the effect that the declarer (remitter [the funds of the issuer - usually a bank - secure these checks] or payee) lost possession of a check..." (Lost, destroyed, or stolen Cashier's check) -The claim becomes enforceable *90 days* after the date of the check... until that time it has no legal effect -US v. Boren, 9th Circuit, 2002= false 1 mill. dollar cashier check, Boren loses all the money & has to serve federal prison time

UBER & the law!

Uber drivers are independent contractors, not full-time employees of the ride-hailing company, a federal judge ruled in what is said to be the first classification of Uber drivers under federal law. ... Many have sued Uber, but most of those cases have been sent to private arbitration

Vicarious liability

Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which is has been determined that, irrespective of fault, a party should be held to respond for the acts of another. Thus, a principal whose liability rests solely upon the doctrine of respondeat superior and not upon any independent act of the principal is not a joint tortfeasor with the agent from whose conduct the principal's liability is derived. Essentially, aside from the relationship between the parties creating the doctrine of vicarious liability, the principal is not a tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault.

International Protection

WIPO-administered systems of international protection significantly simplify the process for simultaneously seeking IP protection in a large number of countries. Rather than filing national applications in many languages, the systems of international protection enable you to file a single application, in one language, and to pay one application fee. These international filing systems not only facilitate the process but also, in the case of marks and industrial designs, considerably reduce your costs for obtaining international protection (in the case of patents, the PCT helps your SME in gaining time to assess the commercial value of your invention before national fees are to be paid in the national phase). WIPO-administered systems of international protection include three different mechanisms of protection for specific industrial property rights. -International protection of inventions is provided under the PCT system, the worldwide system for simplified multiple filing of patent applications. By filing one international patent application under the PCT, you actually apply for protection of an invention in each of a large number of member countries (now more than one hundred) throughout the world. -International protection of trademarks is provided under the "Madrid system." The Madrid system simplifies greatly the procedures for registering a trademark in multiple countries that are party to the Madrid system. An international registration under the Madrid system produces the same effects as an application for registration of the mark filed in each of the countries designated by the applicant and, unless rejected by the office of a designated country within a certain period, has the same effect in that country as a registration in the Trademark Registry of that country. -International protection of industrial designs is provided by the Hague Agreement. This system gives the owner of an industrial design the possibility to have his design protected in several countries by simply filing one application with the International Bureau of WIPO, in one language, with one set of fees in one currency.

CASE 3: Walter, an employee of Truman, Inc., was charged with the duty of finding off site office space which could be rented on a yearly basis. He was not authorized to actually execute the lease. On Friday afternoon he located property which he thought was ideal, but was unable to contact company officers on the phone. So he "took a chance" and signed the company's name to the lease. When he told the company president the next day, he said "good job!" Is the company bound to this contract?

Yes, ratification

CASE 5: Wendy is the president of a non-profit organization which has been formed to provide assistance to young adults who want to learn how to take control of their financial affairs, to include making and sticking to a budget. The organization is not incorporated. On behalf of the organization, Wendy made a contract with a number of creditors who sold the organization needed materials. Unfortunately, the organization was unable to pay its debts. Is Wendy liable for this obligation?

Yes. Or possibly no. Uniform Unincorporated Nonprofit Associations Act (UUNAA) "A nonprofit association is a legal entity separate from its members for the purposes of determining and enforcing rights, duties, and liabilities in contract and tort... A person is not liable for a breach of a nonprofit association's contract merely because the person is a member, is authorized to participate in the management of the affairs of the nonprofit association, or is a person considered to be a member by the nonprofit association."

CASE 2: Terry was a purchasing officer of Wonderful Company, and had made many contracts for the company over the years. One day Terry was terminated. The next day Terry made a contract on behalf of Wonderful with a vendor. The vendor had dealt with Wonderful through Terry for many years, and did not know that Terry had been dismissed. Is Wonderful liable to the vendor on this contract?

Yes. bc they didn't notify the vendor that Terry had been terminated & was no longer an agent

What Is a Mortgage Deficiency Judgment?

Your mortgage is a secured debt. This means that your home essentially acts as collateral for your loan. If you don't make your mortgage payments, the lender can take back the house through foreclosure. If your lender forecloses on your home, it will typically conduct a sale to auction off the house to the highest bidder. If the sale proceeds are not enough to cover your mortgage balance, the remainder is called a deficiency. In certain states, mortgage lenders are allowed to sue borrowers for a deficiency balance. If your lender sues you, it can obtain a deficiency judgment against you for the unpaid balance.

Avoid conflict of interest.

avoid conflict of interest between his/her personal interests and the interests of the principal.

A real estate contract

is a contract between parties for the purchase and sale, exchange, or other conveyance of real estate. The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. Real estate called leasehold estate is actually a rental of real property such as an apartment, and leases (rental contracts) cover such rentals since they typically do not result in recordable deeds. Freehold ("More permanent") conveyances of real estate are covered by real estate contracts, including conveying fee simple title, life estates, remainder estates, and freehold easements. Real estate contracts are typically bilateral contracts (i. e., agreed to by two parties) and should have the legal requirements specified by contract law in general and should also be in writing to be enforceable.

transfer of property thru real estate agent-

only has right to market the property, not the right to sell. If u have written, listing contract during listing period- tho don't need real estate agent, still must pay it, bc sold during listing period.

30 days

the customer's unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank.

The restrictive (neighborhood) covenant...

used by many "common interest" developments, including condominiums and co-ops, to regulate the use, appearance, and maintenance of property. -most commonly drafted and enforced through homeowners' associations (HOAs), often restrict what homeowners can do on their property. In the context of residential neighborhoods, a "covenant" is rule that governs the use of real property, also referring to an agreement to abide by these rules. Legally, a properly recorded covenant (technically, a "restrictive deed covenant") is binding and enforceable. Even when covenants are not part of the contract and are instead signed among neighbors (such as a mutual compact), they are binding and may be litigated if breached. Covenants are most often used by planned developments such as gated communities, condominiums, and housing cooperatives to ensure a certain level of order and uniformity. The standards enforced through covenants often help the homes in the neighborhood retain their value because they tend to look much nicer and better maintained. Homeowners often welcome these standards since they typically address things like excessive noise, lawn maintenance, and other things that impact quality of life. Restrictions: The value of a property often is determined by the view it offers its residents. For instance, a home offering views of a tree-lined valley will be valued more than the same home with a view of a power plant. Therefore, neighborhoods with CC&Rs sometimes address this by restricting the location and size of fences, trees, buildings, and other possible obstructions.

AGENCY RELATIONSHIPS: FORMATION/CREATION

· Agency by Agreement/Contract: An agency relationship based on an express or implied agreement that the agent will act for the principal. Obviously the most common form. In some cases, there weren't enough required elements to form a contract, and thus only an "agreement." · Agency by Ratification: A confirmation by the principal of an act or contract performed or entered into on his or her behalf by another, who assumed, without authority, to act as his or her agent. May be oral or written, usually cannot be rescinded, is retroactively applied back to original date the alleged contract was "made." · Agency by Estoppel: If a principal (NOT THE AGENT) holds out to a third party that another is authorized to act on the principal's behalf, and the third party deals with the other person accordingly, the principal may not later deny that the other was the principal's agent for purposes of dealing with that third party. RARE! · Agency by Operation of Law: Agencies recognized by courts -- e.g., family relationships, emergency situations -- in the absence of any formal agreement, confirmation, or act or omission by the principal that implied the agent's authority. Usually deals with necessities. --Note that marriage is not necessarily considered an agency relationship solely due to the mere fact the couple is *married*. Recall an agency relationship results from manifestation of assent and direction from one to another

Apparent Authority:

· Apparent Authority: Authority that arises when a principal, by either words or actions, causes a third party to believe that an agent has authority to act, even though the agent has no express or implied authority to act with regard to the particular matter at hand. · If the third party changes his or her position in reliance on the principal's representations regarding the agent's authority, the principal may be estopped from denying that the agent had authority to act. Estopped means "kings x, you can't go back on the deal" · Emergency Powers: When an unforeseen situation demands action to protect or preserve the property and rights of the principal, but the agent is unable to contact the principal, the agent has emergency authority to act on the principal's behalf.

AGENCY RELATIONSHIPS: TERMINATION**

· By Act of the Parties: An agency may be terminated by any of the following: (1) lapse of time; (2) accomplishment of particular purpose for agency; (3) occurrence of a specific event (closed the deal, for example); (4) mutual agreement of the agent and principal; and (5) renunciation (by the agent) or revocation (by the principal) of the agent's authority. · By Operation of Law: An agency may also terminate as a matter of law due to: (1) death or incompetence of the agent or principal; (2) impossibility of performance; (3) materially changed circumstances; and/or (4) bankruptcy of the principal or agent. The principal should also give notice to 3rd parties of the termination of the agency to anyone that has dealt with the agent, which includes "published" notice.

PRINCIPAL'S DUTIES (Agent's rights) TO THE AGENT

· Compensation: When a principal requests certain services from an agent, the principal has a duty to pay the agent, in a timely manner, for those services rendered. · Reimbursement: Whenever an agent disburses sums of money to fulfill the principal's request or to pay for necessary expenses incurred in the reasonable performance of his or her duties, the principal has the duty to reimburse the agent. · Indemnification: Subject to the terms of the agency agreement, the principal has a duty to compensate, or indemnify, the agent for liabilities arising from the agent's lawful and authorized acts on the principal's behalf. · Cooperation: A principal has the duty to cooperate with the agent and to assist the agent in performing his or her duties. · Safe Working Conditions: A principal has the duties (i) to provide its agents and employees with safe working premises, equipment, and conditions, and (ii) to inspect working conditions and warn agents and employees of unsafe areas.

Employee compared to Independent contractor

· Employee: One who works for, and receives payment from, an employer, whose working conditions and methods are controlled by the employer, and for whose acts and omissions occurring in the scope of employment the employer is liable. A classic agency relationship! Now, lets compare an employee to an · Independent Contractor: One who does work for, and receives payment from, an employer, but whose working conditions and methods are not controlled by the employer, and for whose acts and omissions the employer is not liable. For example, a CPA is paid by a client whom the CPA audits, but the CPA is free to review the records in any fashion they wish. Also, the CPA would be liable to 3rd parties relying on the CPA's work (but paid by the audited client!). · Whether a worker is an employee or an independent contractor may be determined by: (recall the principal is the employer) (1) How much direction and control the employer exercises over the details of the person's work; (2) Whether the person is engaged in an occupation or business distinct from that of the employer; (3) Who supplies tools used at the place of work; (4) What degree of skill is required of the worker; and (5) the Duration of employment and method of payment. This often becomes important for various tax items, such as W-2 or 1099 income reporting. Usually people like to say an employee is an independent contractor so they don't have to pay Social security taxes on those payments (actually wages).

LIABILITY FOR CONTRACTS: UNAUTHORIZED ACTS (by Agent)

· If an unauthorized agent contracts with a third party, the principal cannot be held liable on the contract, regardless of whether the principal was disclosed, partially disclosed, or undisclosed. Rather, the agent will be solely liable. · However, if the third party knows or should know at the time of the contract that the agent lacks authority to contract on behalf of the principal, the agent will not be liable to the third party.

AGENT'S DUTIES TO THE PRINCIPAL (Principal's Rights)

· Loyalty: An agent has the duty to act solely for the benefit of his or her principal, and not in the interest of the agent or a third party. Moreover, any information or knowledge obtained in the course of the agency is confidential. THE AGENT CANNOT PROFIT INDIVIDUALLY WITHOUT PERMISSION FROM THE PRINCIPAL. · Obedience: An agent has the duty to follow all lawful and clearly stated instructions of the principal. Why else would anyone agree to have an agent/principal relationship??? · Accounting: Unless otherwise agreed, an agent has the duty to keep and make available to the principal an account of all property and money received and paid out on the principal's behalf, including gifts received from third persons. · Performance: An agent impliedly agrees to use reasonable diligence and skill (except for a specialist, who is held to a higher degree of skill) in performing the task in its entirety. In other words, due care. · Notification: An agent is required to notify the principal of all matters that come to the agent's attention concerning the subject matter of the agency. As a result, the principal must be in constant communication with the agent.

RATIFICATION

· Ratification: The express or implied affirmation of a previously unauthorized contract made by a purported agent. In summary: (1) The purported agent must have acted on behalf of the principal who subsequently ratified the action; (2) The principal must know all material facts involved in the transaction; (3) The agent's act must be affirmed in its entirety by the principal; (4) The principal must have the legal capacity to affirm the transaction both (a) at the time the agent acts, and (b) at the time the principal ratifies; (5) The principal must affirm before the third party withdraws from the transaction; (6) The principal must observe the same formalities when he or she ratifies the act as would have been required to authorize it initially. -(ALL OF THIS STUFF MUST EXIST)

PRINCIPAL'S LIABILITY FOR AGENT'S TORTS *

· Respondeat Superior**: The doctrine by which an employer or other principal is liable, along with the agent or employee, for any tort committed by the agent or employee while acting within the scope of their agency or employment. · To determine whether a tort was within the scope of agency or employment, courts look at the following: (1) whether the act was authorized; (2) the time, place, and purpose of the act; (3) whether the act was one commonly performed by employees on behalf of their employers; (4) whether the employer's interest was advanced; (5) whether the employee's interests were involved; (6) whether the employer furnished the means or instrumentality by which the injury was inflicted; (7) whether the employer had reason to know; and (8) whether the act involved a serious crime. Generally the principal is not responsible for the torts of an independent contractor, except in situations which is inherently dangerous, illegal, nondelegatable, or impossible to separate from the principal.

Definitions

● Principal: The person or entity on whose behalf and subject to whose control an agent acts. For example, your boss at work. · Agent: A person who agrees to act on behalf of and instead of his or her principal, subject to the principal's control. A good example would be an insurance agent. Generally, in a business relationship, the principal and agent relationship requires being either an employee/employer relationship or an independent contractor. · Fiduciary: A person who undertakes to act on behalf of and primarily for the benefit of another. For example, a trustee for a trust. ● Fiduciary Duty: A duty arising from the trust and confidence placed in a fiduciary by those on whose behalf and for whose benefit he or she acts. · Person: a natural person, corporation, partnership or other recognized entity

CH. 13- PROPERTY

(ab same number of questions as above)

Protecting creditors from abuse by debtors:

**-Fraudulent transfers: the 2 year rule! The debtor either had actual intent to defraud creditors, OR the transfer caused the debtor to become insolvent. some states longer than 2 yrs. -Preference: the 90 day rule!*

Benefits -Ch. 7 -Ch. 13

-Allows debtors to quickly discharge most debts and get a fresh start -Allows debtors to keep their property and catch up on missed mortgage, car, and nondischargeable priority debt payments

Procedures:

-File in federal court: "date of bankruptcy". -Automatic stay-- creditors are notified that their debtor has filed for bankruptcy & cannot file civil suit against the debtor, until further notice. -Forms under oath. -Selection of trustee-- representative of the creditors. -*If straight liquidation, non-exempt property seized & sold* -If Ch. 11 or 13, reorganization

Creation of Agents

-express authority (Power of attorney: you can do anything they could have legally done to you; most common) -implied authority (based on "normal curve of business" -authority that is custom made for the job) -apparent authority (aka agency by estoppel -based on "illusion of authority"...must be created by the principal)

An agent owes certain duties towards his/her principal and a principal owes certain duties towards his/her agent. The scope of an agent's duty to the principal is determined by:

-the terms of the agreement between the parties; and -extent of the authority conferred and -the fiduciary obligations to the principal.

How long is a patent**?

20 yrs

Case 2: A lawn mowing service comes to your house once a week to mow your lawn. Servant or independent contractor?

Ans: Independent contractor

Constructive Eviction

Constructive eviction is when a tenant leaves the leased property due to the landlord's conduct that materially interferes with the tenant's agreed-upon purpose and prevents the property from being in tenantable condition. Constructive eviction is triggered by the landlord's wrongful conduct. Wrongful conduct may be satisfied by a wrongful omission when the landlord does 1 of 5 things: -fails to perform an obligation in the lease -fails to adequately maintain and control the common area -breaches a statutory duty owed to the tenant -fails to perform promised repairs -allows nuisance-like behavior In addition to the landlord's material omission of 1 of these 5 elements, the tenant must also leave the property within a reasonable time frame. Otherwise, the tenant waives the right to a constructive eviction claim. (A constructive eviction occurs when the landlord causes the premises to become uninhabitable.)

Duties of the landlord:

Federal Fair Housing Law -Quiet enjoyment -Constructive eviction -Implied warranty of habitability

What are exemptions in bankruptcy?

In Chapter 7 bankruptcy, exemptions determine what property you get to keep, whether it be your home, car, pension, personal belongings, or other property. If property is exempt, you may keep it during and after bankruptcy. If property is nonexempt, the trustee is entitled to sell it to pay your unsecured creditors.

A case involving a 3rd party (not a customer of the bank):

Kronemeyer & Johnson v. US Bank National Association, 857 N.E.2d 686 (I11. App. 2006) Charged $10 to persons who did not have an account at the bank but wanted to cash a check which was drawn on the bank. HELD: Legal! No obligation to 3rd parties, but some banks charge

The bottom line btwn the 2:

Tangible assets are physical in nature that can be either long-term or short-term assets. Intangible assets are long-term assets that are not physical, but rather, intellectual property. Both tangible and intangible assets are recorded on the balance sheet.

Fraudulent Transfers

The trustee can also use the clawback provision to undo fraudulent transfers of property. In general, fraudulent transfers include those made with the intent to hide assets or transfers of property for less than fair market value prior to bankruptcy. The trustee may have grounds to void a transfer and recover the property if: -you made the transfer within the two years prior to your bankruptcy or within the time limit allowed by state law for setting aside fraudulent transfers, whichever is greater, and -you intended to delay, hinder, or defraud your creditors (actual fraud), or -you received less than fair market value for the property transferred while you were insolvent, became insolvent as a result of the transfer, or intended to incur more debt than you could afford to pay back (constructive fraud). However, if the asset transferred had no equity or would have been exempt, the trustee will typically not void the transfer as fraudulent.

Similarities Between Quitclaim and Warranty Deeds

They both deal with the conveyance of real property. Conveying a piece of real property means to transfer the ownership interest in said property from one party to another. A "conveyance" also describes the written instrument by which the transfer occurs. Conveying a property requires several different steps. As conveyance deeds, both quitclaim and warranty deeds need to contain a few similar vital pieces of information. These include: --Defined real property boundaries. The grantor will likely need to order a land survey to establish the boundaries and measurements of a piece of land. Documenting the exact parameters of a property is important to avoid property line disputes in the future. --Clear language of conveyance. Both types of deeds must include clear language of conveyance from the grantor to the grantee. Both deeds should transfer the title, interests, and all claims of the property. They should also describe the state of the property at the time of the conveyance. --Signatures from all parties involved. For a quitclaim or a warranty deed to become valid, all parties involved must sign the document. The current property owner and the owner to-be must sign the deed of conveyance. Upon signing, both deeds convey all legal ownership, rights, and authority over the property. (Both types of deeds and all other deeds of conveyance should be in writing. Oral deeds can be impossible to uphold in a court of law. Create written deeds that state the names of the grantor and the grantee, have written signatures, and a notary seal. Finally, the grantee will need to register the quitclaim or the warranty deed with the county to make the conveyance official and part of public record.)

Utility Patent Protection (Protects Function)

Utility patent applications are the most common type of patent application filed with the U.S. Patent Office. While utility patent applications are more expensive than design patent applications, a utility patent typically will protect your invention better than a design patent. i. Benefits of Utility Patents -Protects the functional aspects of an invention. -Can provide broad patent protection making it difficult for a competing product to avoid patent infringement. -Capable of protecting many different variations of a product with a single utility patent. ii. Detriments of Utility Patents -More expensive than a design patent. -Takes longer to receive patent protection (normally 2-3 years). -Does not protect the ornamental features of an invention.

Hypo: Dan discovered that a lottery ticket he purchased before* he filed for bankruptcy won the $1 million jackpot. Is this part of the bankruptcy estate?

Yes

Cashier's check:

a check which the bank draws on itself. CANNOT stop payment on a cashier's check, because the BANK is obligated to pay. -"As good as cash" (most used today- no reason to stop payment except for under very limited circumstances)

Usually results in the following relationships:

a. Principal and agent b. Employer (master) and employee (servant) c. Principal and Independent contractor

Implied Authority:

actual authority that is (i) conferred by custom ("everyone in the job has always done this..."), (ii) inferred from the position the agent occupies (you would expect a vice president to be able to act on behalf of the company), or (iii) inferred as being reasonably necessary to carry out express authority (sign the contract).

Student loans? (ON TEST*)

gov't given student loans CANNOT be discharged**

The applicable law

in England- the law merchant led to.. the Negotiable Instruments Law, which led to the Uniform Commercial Code (UCC), articles 3 & 4, which led to revised UCC articles 3 & 4

Certified checks:

take a check to the bank, & ask them to certify the check (gone out of style) -*payment cannot be stopped! (A certified check is a personal check written by a bank account holder, drawn on the account and guaranteed by the bank. The bank verifies that the signature is genuine and that the check writer has enough money for the transaction, and sets aside the full amount of the check for when it's cashed or deposited.) (The whole purpose of a certified check is to ensure the person who's getting paid that there's money behind the check)

Contractual liability of the principal:

• Liable if gave "express authority." • Liable if gave "implied authority." • Liable if there was "apparent authority." • Liable if there was ratification.

Priorities: "all creditors are equal, but some are more equal than others..."*** (know them all)

(ppl that get paid first whenever they're going thru bankruptcy- its what gets paid first) -Secured creditors (only to its collateral) (ex. Mortgage) -*Child and spousal support obligations* -Administrative expenses (ex. court costs, attorney fees) -Wages & salaries (when the debtor has employees) up to a dollar maximum -Taxes (3 yrs)

The Listing Contract** PARA 1 & 7

-PARA 1: RIGHT TO SELL: "...Listing Firm shall have the exclusive right to market the Property for the listing period..." -PARA 7: LISTING AGENT FIRM'S FEE: "If Listing Firm presents to Seller an offer in an amount equal to or greater than the Offering Price, or such lesser price or terms as Seller may accept, or if the Property is otherwise sold or disposed by Listing Firm, or any other person, including Seller, during the Listing Period, Seller agrees to pay Listing Firm a professional fee..." (*The real estate agent does NOT have the right to SELL. ONLY the right to MARKET*)

Non-dischargeable debts*** (know them!)

(individual debts that cannot be charged) (when file for bankruptcy they cannot be taken away- have to pay them) -Taxes within 3 yrs. -Any debt resulting from fraud. -Liability for *willful* torts (intentional). (For a debt to be non-dischargeable under this provision, a deliberate or intentional injury is required, not merely a deliberate or intentional act that leads to injury.) (Ex. You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.) -Alimony & child support -Any debt not listed.-- list all creditors (unscheduled debts (any debts the debtor fails to list on the bankruptcy petition or include on the mailing list), unless the creditor had actual notice or knowledge of the bankruptcy filing. Also, many jurisdictions allow discharge of otherwise dischargeable debts not listed in the petition due to an innocent mistake when there are no assets to distribute.) -Gov't guaranteed student loans (unless undue hardship). Case: Ford v. Student Loan Guarantee Foundation - (All federal student loans are governed by a "Promissory Note" which sets forth the terms and conditions applicable to the loan. All federal promissory notes provide that the loan (or loans) governed by the note must be administered in accordance with the Higher Education Act and Department of Education regulations. These regulations establish the various repayment plans that are available to federal loan borrowers, and impose various servicing requirements on "loan servicers.") -Debts resulting from DWI

breaking down Stop payment=

Issuing a stop payment order often costs the bank account holder a fee (generally ~$30 although bank policies differ), which is levied by the institution. There are several reasons that a stop payment order may be requested. For example, the account holder may have sent a check for the wrong amount, or may have canceled a purchase after having put the check in the mail. Occasionally, if the stop payment is not requested in time and/or incorrectly, the financial institution will not be able to halt the process. To request a stop payment, an account holder generally provides specific information about a check in progress to the bank - e.g. "check # 607 for $250 written to John's Cleaning Agency." In an ideal scenario the bank would then flag the check and prevent it from clearing. If a bank is unable to locate the check in question, it will often continue to look for the check for six months - although policies differ among banks. If the check is never found, the request for stop payment usually expires, and the check could potentially be paid.

Maintaining your trademark

On the tenth anniversary of registration, the owner has to provide actual proof that the trademark is in use. In addition to the declaration, like the trademark section 8 declaration, the owner must provide photographic evidence of a product, using the trademark, available for sale. As part of the trademark renewal process, every 10 years thereafter, the owner will need to similarly provide proof of usage and a declaration—unless the trademark is to go abandoned. Understanding trademark maintenance requires understanding what a trademark is. If you own a trademark, then you do not own a logo or a word or a brand. You own the right to exclude others from using that trademark on goods or services. The trademark is how you tell your customers that your products come from you. The USPTO has a direct interest in protecting your ability to enforce those rights. To keep those rights enforceable, however, you have to keep using them. You have to make products, sell them, and include your trademark on them. If you fail to do any of those, then you no longer have a trademark to protect. If you fail to do them long enough, you will lose your rights to use the trademark. So, how long does a trademark last? As long as you maintain it, as described here.

Copyright Infringement- steps

Once copyright infringement liability is established, the plaintiff may be entitled to several different remedies. One remedy is injunctive relief, which restrains the defendant from future copying of the work. A preliminary injunction can be sought early in the case to restrain copying during the lawsuit. Most times, if the preliminary injunction is granted, the party seeking the injunction will have to post a bond or security for possible damages to the enjoined party if it is determined, after a full trial, that the preliminary injunction was granted in error. The preliminary injunction can turn into a permanent injunction once the lawsuit is terminated, and copyright infringement is found by the court. Another remedy is money damages. Under federal copyright law, the prevailing plaintiff may recover both his or her actual damages and the defendant's profits to the extent those profits were not already taken into account in computing the actual damages. The primary measure of recovery of actual damages is based upon the extent to which the market value of the copyrighted work has been injured or destroyed by the infringement. For example, the plaintiff may prove that, but for the infringement, the plaintiff would have been able to sell X amount of the work at Y profit per unit, lending to actual damages of XY. Lacking this type of proof, the plaintiff may be able to show the defendant's profits from sales of the infringing work. Damage calculations are highly fact intensive and must be determined on a case-by-case basis. Very often, proof of actual damages is very difficult. Acknowledging this reality, federal copyright law allows a prevailing plaintiff to elect to recover so-called statutory damages in lieu of actual damages. Currently, statutory damages range from $500 to $20,000 per act of infringement. If the court finds that the defendant acted willfully, the court may increase the damages to a maximum of $100,000 per act of infringement. Finally, the court can also order the defendent to pay the plaintiff's attorney's fees and court costs.

Duty of the payor bank to pay on the check:

Owed only to the customer- the bank owes a duty to their customer but NEVER to a 3rd party (does not have obligation to 3rd party, is only owed to the person who wrote the check) (When a customer (drawer) issues a check the payor (drawee) bank is under an obligation to the customer to pay the check provided there are funds available and the check is properly payable. It is important to note that this obligation is owed only to the customer and not to the holder (payee) of the check.)

three elements for a transfer order under the Policy

Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name at issue in this case: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Complainant's delay in filing the Complaint and Respondent's Defense of Laches

Qualified indorsement-

is an individual's signature including the words "without recourse". purpose of this form is to limit the potential liability of the indorser who's transferring the instrument in the event the payor ultimately dishonors the instrument. idea is that the indorser is transferring any rights she has in the instrument, but she's not warranting that the payor of the instrument will honor it. may limit the indorser's liability to subsequent holders of the instrument, it doesn't affect/limit the ability to further transfer/negotiate the instrument -The dichotomy here between qualified and unqualified indorsements is the indorser's way of indicating what liability she is willing to incur to subsequent holders. Ex.: Darla is the payee on the note. she signs the note & writes "no recourse" & then transfers the note to Dawn. Dawn cannot sue Darla to enforce/pay the instrument if the instrument is later dishonored by the payor at the time of the presentment relieves the indorser from the liability of making a check good if the check maker defaults on it. Wording "Without Recourse" (along with the indorser's signature) on the back of a check prevents it from returning to the indorser for any reasons. -Also note that this type of indorsement is not accepted by financial institutions because of the limitation of the indorser's liability.

What is indorsement?

is the act of writing on the back of a negotiable instrument. (a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser's liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicated that the signature was made for a purpose other than indorsement.) (The act of a payee, drawee, accommodation indorser, or holder of a bill, note, check, or other negotiable instrument, in writing his name upon the back of the same, with or without further or qualifying words, whereby the property in the same is assigned and transferred to another. That which is so written upon the back of a negotiable instrument. One who writes his name upon a negotiable Instrument, otherwise than as a maker or acceptor, and delivers it, with his name thereon, to another person, is called an "indorser," and his act is called "indorsement.)

Damages:

liability in a civil action to the owner of the mark, if the person had a bad faith intent to profit from the mark. Amount: btwn $1,000 & $100,000. -Any of these might indicate "bad faith": -attempt to sell to trademark owner -applied with false information -multiple filings (The Anticybersquatting Consumer Protection Act (ACPA) is a U.S. law enacted in 1999 that established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.)

COPYRIGHT- like a book/movie/play/etc-

provided for in US constitution- Article 1, sec. 8. Federal law supersedes state law. Mainly need to know current law- passed under sonny bono- life + 70** - All federal law

Statutory Law

the Anticybersquatting Consumer Protection Act of 1999: 15 U.S.C. 1051. A person proved to be a "cybersquatter" is liable to a trademark owner if the person, with a bad faith intent to profit from the mark, registers a domain name that's either identical or confusingly similar to a distinctive or famous mark. The act also makes it illegal to register the domain name of a living person without the person's consent with specific intent to profit by selling the name for financial gain

Blank indorsement-

this means signing the instrument w/o designating any particular payee or making any other form of limiting designation. a blank endorsement turns order paper into bearer paper Ex.: a promissory note is payable to "Frank or order". If Frank signs the promissory note, it is a blank endorsement that makes the paper enforceable by any holder -A paper with blank indorsement may be negotiated by delivery alone, until such time as a holder converts it into a special indorsement (discussed next) by writing over the signature any terms consistent with the indorsement. For example, a check indorsed by the payee (signed on the back) may be passed from one person to another and cashed in by any of them. -A blank indorsement creates conditional contract liability in the indorser: he is liable to pay if the paper is dishonored. The blank indorser also has warranty liability toward subsequent holders. (A signature that names no payee, thereby making the instrument payable to the bearer.) A blank endorsement is when someone signs the back of a check that does not indicate a particular payee. The person who wrote the check is considered the remitter. Once endorsed, the check can be cashed by anyone who wishes to claim it. People can also write a check to themselves as cash, and cash it. They just sign the back. There is one line on the back of the check, and above the line it says, 'endorse check here. There are no additional constraints or time. However, since the back of the check is left blank for a signature, if the payees endorse it, leave it around the house, the maid picks it up and signs it over to herself, then that's an issue. The maid could take the check & deposit it into their account. (Consists of only the indorser's signature) --Looks like: A blank endorsement is a signature by someone who creates a financial instrument, such as a check. This enables any holder of the instrument to assert a claim for payment. Since no payee is specified, such an endorsement essentially turns the instrument into a bearer security 1.A blank or general endorsement is one in which the endorser simply puts down his signature. 2.The name of the endorsee, it should be noticed is not put down. 3. The effect of such an endorsement is to make the cheque a bearer cheque. 4. The property in the cheque can now be transferred by mere delivery, no endorsement being required. Thus an order cheque can be made a bearer cheque by putting down a blank endorsement.

Anticybersquatting consumer protection act of 1999- Damages- a case- Prince.

Provides a remedy to trademark names -Now, Prince's estate and Paisley Park Enterprises, the late star's main business company, want to legally claim the color as their own (in addition, of course, to any common law rights they already maintain in the color as a result of Prince's use of it since the 1980's; remember, trademark rights in the U.S. are borne by way of use of the mark and not simply by being the first to register it). To be exact, the Prince-affiliated parties filed an application for registration with the U.S. Patent and Trademark Office ("USPTO") this month for "the color purple" for use on "musical sound [and] musical video recordings," "motion picture films featuring music and musical entertainment," and "entertainment services, namely, live performances," "operating a museum and providing guided tours of the museum," among other things. -Brands' attempts to gain - and enforce - federal protection for color serve to highlight the importance that color has in a brand's enduring identity and its marketing strategy. In much the same way as a trademark acts as an immediate indicator of the source of a product or service for consumers, color can play an important source-identifying function. -As for Prince's estate, its mark will be examined by a USPTO attorney (to ensure that it is not confusing similar to any existing marks) and then published in the USPTO's weekly publication, thereby giving other parties that believe they will be damaged by the registration of the mark an opportunity to oppose it.

Forgeries

Section 4-401 codifies the most basic rule employed in apportioning losses caused by check frauds. A bank cannot pay a check drawn on its customer's account unless the item is "properly payable." Remember that a forged signature does not operate as the signature of the person named in the forgery. An unauthorized or forged signature is wholly inoperative except as the signature of the signer. § 3-403. It follows from this that a check should not be paid if any necessary signature on the check is unauthorized or forged. The drawer's genuine signature is necessary, after all, because it is the drawer's account upon which the check is drawn. The bank should not be paying an instrument drawn by anyone else. Similarly, if the payee's signature is forged, the bank paying the item is not following the drawer's direction. The drawer instructed the bank to pay to the order of the named payee. The bank paying against a forged indorsement is not following the payee's direction but the forger's. The major difference between the case of a forged drawer's signature and a forged indorsement concerns the ability of the payor bank to recover for breach of warranty. Suppose a pickpocket lifts a blank check, forges the drawer's signature and deposits it in his own bank account. The pickpocket's bank presents and obtains payment of the instrument. The drawer, in this example, would be entitled under § 4-401 to have the payor bank recredit his or her account. The check was not properly payable. Once the payor bank recredits the account, it would probably bear the loss. Under the rule of Price v. Neal preserved in the limited presentment warranty of § 4-208(3), the presenting bank warranted only that it had no knowledge of the forgery. Chances are good that the pickpocket has withdrawn the sums credited against the check. Therefore, no restitution theory would help the payor bank. The presenting bank has given value for the instrument in good faith. Unless the payor bank can find and recover the sums from the pickpocket, a dim prospect, it will bear the loss caused by paying against a forgery of its customer's signature. Contrast the case where a thief grabs a check from the payee, forges the payee's indorsement and deposits the check in a bank that presents it and obtains payment. Once again, the item is not properly payable. Because the check was payable to the payee's order, the payee's indorsement was necessary for any further negotiation of the instrument. The thief's forgery is not the payee's signature and cannot pass title to the instrument. The payor bank must recredit the drawer's account. In this instance, however, the payor bank has a remedy. The presenting bank breached the warranty that it was a person entitled to enforce the instrument, the warranty of good title. § 4-208(a)(1). The payor bank can shift the loss to the presenting bank, which will be left with its claim against the thief.

The current federal copyright law

Sonny Bono Law: Copyright Term Extension Act Congress passed in only one day. Term is life plus 70 years (95 for corporate owner). 2003: the law survives. (the Sunny Bono law is the law of today, so its lifetime plus 70, so if someone has copyright & dies, that's the measuring point - life + 70. -1990 Copyright Term Extension Act (aka Sunny Bono) -summary: term has gone from 28 yrs max to life plus 70 -addendum- jack valenti: "...forever, less one day" -Congress passed in only one day -95 for corporate owner What major US company was the motivating force behind the CTEA? -Disney- got Congress to add 20 more yrs. From 75 to 95 for corporate operation -Disney is registering as a trademark)

The holder of a negotiable instrument may get...

Special benefits. What makes an instrument negotiable?**: writing, promise or order, signature (signed by maker or drawer), money and sum certain, unconditional, demand or definite time, payable to order or bearer

Generic

Terms that fall under the category of generic are never considered distinctive and therefore can never receive protection under trademark law. A mark might be generic at the time of application, meaning ab initio, or a mark may become generic over time and lose its protection under trademark law from dilution or overuse. If a mark becomes meaningless and generic to the public, it doesn't deserve protection under trademark law.

WIPO Arbitration and Mediation Center

The WIPO Arbitration and Mediation Center is internationally recognized as the leading dispute resolution service provider for challenges related to the abusive registration and use of Internet domain names, a practice commonly known as "cybersquatting."

Detailed 8 requirements to negotiability (exs. of)

The concept of negotiability is one of the most important features of commercial paper, a contract for the payment of money. A negotiable instrument is a written document, signed by the maker or drawer that contains an unconditional promise to pay a certain sum of money on delivery or at a definite time to the bearer. It is essentially a piece of paper that can be transferred multiple times from one person or entity to another without the use of actual cash. A check that can be endorsed multiple times by different parties is an example of a negotiable instrument. Each time the check is endorsed and given to another, it represents payment to that party. Because of this feature, negotiable instruments are highly trusted and are used daily by millions of people. When dealing with negotiable instruments, below are eight requirements to keep in mind: 1. Must be in writing. • The writing can be on anything that is readily transferable and that has a degree of permanence. 2. Must be signed by the maker or drawer. • The signature can be anyplace on the instrument. • It can be in any form (such as word, mark or rubber stamp) that purports to be a signature and authenticates the writing. • It can be signed in a representative capacity. 3. Must be a definite order or promise to pay. • A promise must be more than a mere acknowledgement of a debt. • The words "I/We Promise" or "Pay" meet this criterion. 4. Must be unconditional. • Payment cannot be expressly conditional upon the occurrence of an event. • Payment cannot be made subject to or governed by another agreement. • Payment cannot be paid out of a particular fund (except for a government issued instrument). 5. Must be an order or promise to pay a sum certain. • An instrument may state a sum certain even if payable in installments, with interest, at a stated discount or at an exchange rate. • Inclusion of cost of collection and attorney's fees does not disqualify the statement of a sum certain. 6. Must be payable in money. • Any medium of exchange recognized as the currency of a government is money. • The maker or drawer cannot retain the option to pay the instrument in money or something else. 7. Must be payable on demand or at a definite time. • Any instrument payable on sight, presentation or issue is a demand instrument. • An instrument is payable at a definite time even though it is payable on a stated date, or within a fixed period after sight, or the drawer or maker has an option to extend time for a definite period. • Acceleration clauses, even if unenforceable, do not affect the negotiability of the instrument. 8. Must be payable to order or bearer. • An order instrument must name the payee with reasonable certainty. • An instrument whose terms intend payment to no particular person is payable to bearer. Promissory notes, bills of exchange, checks, drafts, and certificates of deposit are all examples of negotiable instruments. Negotiable instruments may be transferred from one person to another, who is known as a holder in due course.

2. decision of 2009

The panel ruled in favor of the Respondent and dismissed the University's claim. Although the panel was not prepared to accept the argument that the doctrine of "laches" provided an absolute defense, it felt that the considerable delay in bringing the case did color the merits of the dispute. The panel also indicated that in a number of decisions prior panels had recognized that vanity E-mail services could be a bona fide offering of goods. It was also noted that the Respondent's E-mail service never competed with the University and that the web site contained a disclaimer disavowing the reader from drawing such a conclusion. The panel then stated that these factors, when combined with the Complainant's delay in bringing the complaint, prevented the panel from concluding as a positive fact that the Respondent had no rights or legitimate interest in the domain name. The panel also stated that there was insufficient evidence to show that the Respondent acted in bad faith. It was not enough, in the panel's view, for there to be a constructive notice of the Complainant's claiming of the mark - instead, only actual notice would suffice. The panel indicated that the word razorback might be associated with something other than a university's athletic teams. The panel's concluding remark was as follows: "Complainant clearly has rights in its strong trademark RAZORBACKS, and simply fell short of meeting all three elements for a transfer order under the Policy."

When is a payor bank liable on a check?

The payor bank has the strict obligation to pay the check. Strict liability: Pay the item (i.e. cash it), or failure to return by "midnight deadline"- midnight of the next business day** for most banks around 2 pm (a forgery is not considered a legal signature, and a payor bank which pays on a forgery is strictly liable to the customer.50 For example, if a customer's checkbook is stolen and the thief writes out a check (forging the drawer's signature), payment of the item by the payor bank would result in a loss to be sustained by the bank. This is true even though the forgery was so similar to the real signature that detection by the payor bank was virtually impossible.) (a payor bank that fails to return a check w/in its midnight deadline is "strictly liable" for the face amount of the check under UCC)

Fraud/negligence

The risk of loss for check fraud is governed by various provisions in Articles 3 and 4 of the UCC. Article 3 governs negotiable instruments, of which checks are a subset. Article 4 provides a comprehensive set of rules for the check system among banks and for the collection of checks. Within this system, the UCC contains a standard risk allocation scheme that requires payment system providers (banks) to bear the risk of loss for fraudulent checks. Only in the case of user negligence can a bank seek to enforce a fraudulent check on a customer. -Negligence (A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.)

A trademark must be distinctive

The second requirement is used to make sure that a mark is identifiable and distinctive from other marks. If a mark is generic or non-distinguishable from other marks, it isn't eligible for protection under trademark law. There are four categories of distinctiveness under this clause: Arbitrary or fanciful Suggestive Descriptive Generic The four categories that fall under the distinctive clause help the examiners at the USPTO to decide whether or not the mark is distinctive enough to deserve protection under trademark law.

Ex. of common law (Lanham Act) case involving the registration of the domain name "candyland.com"

The site included sexually explicit material. Plaintiff, the Hasboro Corporation, filed suit claiming a trademark violation. They based their claim on "dilution"- For a dilution claim, there is no requirement to show a likelihood of confusion from the defendant's use of the offending mark. Nor is it required that the goods or services for which the marks are used are in competition with those of the defendant, or that the owner of the mark will suffer actual economic injury as a result of the use of the offending mark. The threshold requirement for a dilution claim is that the mark is "famous." Dilution can occur in one of two ways, either dilution by "blurring" or "tarnishment." (dilution claim under the TDRA are: (1) the mark is "famous" and "distinctive"; (2) the defendant is making use of the mark in commerce; (3) the defendant's use of the mark began after the mark became "famous," and (iv) a likelihood of dilution by "blurring" or "tarnishment.") -a famous mark may be tarnished when it is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context, resulting in the public association of the lack of quality or lack of prestige in the defendant's goods with the plaintiff's goods. Tarnishment may be established if the "famous" mark loses its ability to serve as a "wholesome identifier" of plaintiff's product. The central element is damage to the reputation of the "famous" mark.

IBP v. Mercantile Bank details

This case centers around a check cashed more than nine years after its issuance. Plaintiff, which wrote and delivered the check, commenced this action against the customer cashing the stale check, the bank at which the customer completed the transaction, and plaintiff's own bank. -In its negligence claim against Sylvan, IBP alleges that Sylvan: (1) knew or should have known that IBP already had paid the $135,234.18 debt to Meyer; (2) knew or should have known that IBP's check was stale; (3) failed to require Meyer's proper endorsement; (4) neglected to inform IBP that Meyer had attempted to cash a stale check; and (5) failed to contact IBP prior to paying the check. -Payment of Stale check- A bank's obligations with respect to the payment of stale checks are governed. This statute provides that " bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, more than six months after its date, but it may charge its customer's account for a payment made thereafter in good faith." (emphasis added). "Good faith" is defined as "honesty in fact and the observance of reasonable commercial standards of fair dealing."

Trademark registration under trademark law

Though not required, it is useful to register a mark as a trademark for protection under trademark law. As stated before, a mark that is used in commerce but isn't registered as a trademark is eligible for protection under trademark law. Though this is true, marks that are registered as trademarks receive more protection under trademark law than those that aren't registered. The advantages that registered trademarks are given under trademark law are: -Incontestable status after five years of continuous use. -Nationwide notice that the trademark is owned and registered. -Ability to bring an infringement lawsuit in federal court. -Ability to potentially recover treble damages, attorneys fees, and other costs. This reduces the number of possible defenses of claims against infringement that can be used. The Lanham Act provides federal protection for distinctive marks that are used in commerce. This means that unregistered marks that are in use in commerce can be protected under trademark law. An unregistered trademark may also be protected under state trademark laws or common law. Under some states' common law, trademarks are protected as a way to reduce unfair competition. Though the laws vary from state to state, the majority of states have adopted something similar to the Model Trademark Bill. The Model Trademark Bill provides for trademark registration. Some states have also adopted the Uniform Deceptive Trade Practice Act, which doesn't provide for trademark registration. It's important to know what laws govern trademark practices in the state where you're doing business. Trademark applications are governed by the Lanham Act, which is under Title 37, Part 2 of the Code of Federal Regulations. Trademark applications are reviewed by examiners at the United States Patent and Trademark Office or USPTO. Along with the help of the courts, the USPTO also polices trademark registries for infringement.

How long do trademarks last?

Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks will persist so long as the owner continues to use the trademark. Once the United States Patent and Trademark Office (USPTO), grants a registered trademark, the owner must continue to use the trademark in ordinary commerce. Just using the mark, however, is not enough. Trademark section 8 requires the owner to provide evidence that the trademark continues to be in use. To show the mark is still in use, the owner must file a section 8 declaration. (You must use or intend to use the mark in commerce. The mark must be distinctive to your business.) (The requirements for the declaration are set forth in Section 8 of the Lanham Act. (15 United States Code, Section 1058) and explained below. The fee (currently $100) must be enclosed along with a specimen of the mark as it is currently used for each class of goods or services. In lieu of the specimen, the trademark owner may recite facts as to the sales or advertising that demonstrates that the mark is in use.)

If overlooks order: (ex. case*)

What if the bank accidentally pays a check which is subject to a stop pay? Can they charge the customer's account? Ex.: (Seigel v. Merill Lynch, 745 A.2d 301 (District of Columbia Court of Appeals) Two New Jersey casinos cashed several checks drawn by Seigel. Upon returning home Seigel places a stop payment order on the checks... but some were paid despite the stop payment order. HELD: For the financial institution: "even if payment had been stopped, the casinos could still have enforced the checks in New Jersey where the transactions was entered into..." (**Can still charge the customer's account)

The check collection process:

What is a "check"? A draft that is drawn from a bank & payable on demand. How does a check go thru the system? Customer—- Payee—- Collecting bank (which will either take it to the payor bank or go thru federal collecting system) -Payor bank (The bank upon which a check is written) *no news is good news* (if don't hear anything back from bank then ur check wen thru & ur good- if bank contacts ur check didn't go thru) -Law: Ex. Suppose that Bob, who lives in Houston, wants to pay for an item he sees at Sheila's Antiques, in Minneapolis, by writing a check on his account at Houston National Bank. Assuming that Sheila's will accept out-of-town checks, here is a sketch of how the check payment and collection process works: -Bob gives Sheila's a check drawn on Houston National Bank (HNB), the drawee bank. -Sheila's deposits the check in its account at First Minnesota Mutual (FMM), the depository bank. -FMM sends the check to HNB for payment, at which point FMM has also become the collecting bank, because it is handling the collection of Bob's check. -Quite often, one or more other intermediary banks (including but not limited to Federal Reserve banks) will handle Bob's check between FMM and HNB. -Bob's check is finally presented by FMM or the last intermediary bank for payment by HNB, which has now become the payor bank.

BREAKING DOWN Third-Party Transaction

When a buyer and seller enter into a business deal, they may decide to use the services of an intermediary or third party who manages the transaction between both parties. The third party's role may include crafting the particulars of the deal, connecting the two parties with each other, or serving as the means of receiving payment from the buyer and forwarding that payment to the seller. For example, in the insurance industry, insurance brokers are third-party agents that market insurance products to insurance shoppers. The client is able to work through the broker to secure an optimal insurance contract that has agreeable rates and terms, while the insurance company works through the broker to gain a new client. If the broker is successful in bringing a new client to an insurance provider, it is paid a commission by the insurer. In the same light, a mortgage broker is also considered a facilitator in third-party transactions, as he or she will attempt to match the needs of a potential home buyer with the loan programs offered by a lender. Third-party transactions are important for various accounting policies and occur in a variety of situations. Importantly, the third party is not affiliated with the other two participants in the transaction. For example, if Firm A sells inventory to its subsidiary, Firm B, a third-party transaction occurs when Firm B sells those final goods to Firm C.

Copyright Infringement- basics

When a copyrighted works is copied by a third party without permission, the owner of the copyright (the plaintiff) may sue that third party (the defendant) for copyright infringement. The plaintiff can obtain injunctions to prohibit future copying and money damages to compensate and, in some cases punish, the defendant for copyright infringement. Copyright law is strictly within the province of federal law. Thus, any lawsuit for copyright infringement must be brought in a U.S. district court, the trial-level court of the federal system. Assuming that the proper district court is chosen, the first prerequisite to a copyright infringement lawsuit is that the copyrighted work must be federally registered with the U.S. Copyright Office. Copyright registration is a fairly simple procedure that involves filing a copyright office form, paying a filing fee (currently $20), and providing the copyright office with one or more copies of the work to be copyrighted. The work need not have been published in order to obtain a registration.

3. Another WIPO case involving an Arkansas entity is Wal-Mart Stores, Inc. v. Mighty LLC,

a company with an address in Charlestown, Nevis. In this proceeding Wal-Mart was attempting to obtain ownership of the domain name "walmartsucks.com." The proceeding was "terminated" without a decision. Currently the domain name is inactive but is within the control of Melbourne IT in Australia, described in its web site as "a world leader in the supply of domain name registration." Wal-Mart was also involved in a lawsuit filed in U.S. District Court in Georgia by Charles Smith, owner of the site "walocaust.com." The plaintiff was seeking a declaratory judgment upholding his right to use this domain name along with similar named sites (such as walqaeda.com). The District Court entered a declaratory judgment in Smith's favor, finding that Smith's activities (including the domain name and the site itself) did not violate any of Wal-Mart's trademark rights, and that the sale of novelty merchandise such as coffee mugs which bore such expressions as Walocaust, Wal-Qaeda, Freedom Hater Mart, and Benton*Villebullies Always was protected under the first amendment as a parody."

Stop payment orders:

a form that you fill out at the bank to stop the payment of a check that you have written. --they can be verbal or in writing under the UCC. -Verbal: 2 weeks -In writing: 6 months (A stop payment order is good for six months. However, if you stopped a payment orally, you have only 14 days to confirm the order in writing or else the stop payment will lapse and the item might be paid. You can extend the stop payment an additional six months by written request.) (A stop payment is a request made to a financial institution to cancel a check or payment that has not yet been processed. A stop payment order is issued by the account holder and can only be enacted if the check or payment has not already been processed by the recipient.) (You might issue a stop payment order if you change your mind after you've already started making payment. For example, you may fall into a dispute with a company that sells you a product or service and want to halt payment until you resolve the matter. Another reason to stop payment is if you misplace your checkbook and fear it has been stolen, or if you know that an unauthorized person has forged your signature on one of your checks. You might stop payment if you realize after issuing the item that the account has insufficient funds and want to avoid the bounced-payment fee, which is usually larger than the stop-payment fee.)

Domain names & trademark infringement

domain names (protected by Lanham Act) & trademark infringement: -Common Law (Lanham Act) -Statutory Law (cybersquatting law) -Dispute resolution policy under ICANN

There are limitations to protection

even the mark is registered: doesn't prevent a prior user from continuing to use that name -Whattaburger* -there is recognition of an older mark being recognized in a smaller area

What damages are owed the customer?

"A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. liability is limited to actual damages proved & may include damages for an arrest or prosecution of the customer or other consequential damages." UCC 4-402 (a payor bank wrongfully dishonors an item if it dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft.)

Negotiable instrument- UCC def.

"negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor. (b) "Instrument" means a negotiable instrument. (c) An order that meets all of the requirements of subsection (a), except paragraph (1), and otherwise falls within the definition of "check" in subsection (f) is a negotiable instrument and a check. (d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article. (e) An instrument is a "note" if it is a promise and is a "draft" if it is an order. If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either. (A bill of exchange or "draft" is a written order by the drawer to the drawee to pay money to the payee. A common type of bill of exchange is the cheque (check in American English), defined as a bill of exchange drawn on a banker and payable on demand. written orders by one person to his bank to pay the bearer a specific sum on a specific date. Prior to the advent of paper currency, bills of exchange were a common means of exchange. They are not used as often today. A bill of exchange is essentially an order made by one person to another to pay money to a third person.) (f) "Check" means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank or (ii) a cashier's check or teller's check. An instrument may be a check even though it is described on its face by another term, such as "money order." (g) "Cashier's check" means a draft with respect to which the drawer and drawee are the same bank or branches of the same bank. (h) "Teller's check" means a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank. (i) "Traveler's check" means an instrument that (i) is payable on demand, (ii) is drawn on or payable at or through a bank, (iii) is designated by the term "traveler's check" or by a substantially similar term, and (iv) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument. (j) "Certificate of deposit" means an instrument containing an acknowledgment by a bank that a sum of money has been received by the bank and a promise by the bank to repay the sum of money. A certificate of deposit is a note of the bank.

Negotiable instruments

"written promise or order to pay money"; verbal promise doesn't count (unconditional written promises to pay the holder a specific sum of money on demand or at a certain time) (Document of title or evidence of indebtedness that is freely (unconditionally) transferable in trading as a substitute for money. Negotiable instruments are unconditional orders or promise to pay, and include checks, drafts, bearer bonds, some certificates of deposit, promissory notes, and bank notes (currency).) (For a document of title to be a negotiable one, it must indicate that the intention of it is that it should be passed on through commerce, with the words "to bearer" or "to the order of [somebody]," and it must be duly negotiated: signed off on by its previous holder (or without any signature needed if it was bearer paper). (A person who possesses a document of title can legally transfer ownership of the goods covered by it by delivering or endorsing it over to another without physically moving the goods. In such a situation, a document of title is a negotiable instrument because it transfers legal rights of ownership from one person to another merely by its delivery or endorsement. It is negotiable only if its terms state that the goods are to be delivered to the bearer, the holder of the document, to the order of the named party, or, where recognized in overseas trade, to a named person or his or her assigns.) -Holder refers to a person; we mean the payee of the negotiable instrument, who is in possession of it. He/She is someone who is entitled to receive or recover the amount due on the instrument from the parties thereto. -On the other hand, A holder in due course (HDC) is a person who acquires the negotiable instrument bonafide for some consideration, whose payment is still due. (Legal term for an original or any subsequent holder of a negotiable instrument (check, draft, note, etc.) who has accepted it in good-faith and has exchanged something valuable for it. For example, anyone who accepts a third-party check is a holder in due course.)

Overdrafts:

(a deficit in a bank account caused by drawing more money than the account holds.) the bank is not obligated to pay its customer if the amount will overdraw their account, but they may choose to if they want to. (usually comes with an overdraft fee) --When it comes to overdrafts, customers generally have three choices: 1. Opt into overdraft coverage and agree to pay an overdraft fee, usually around $35, for transactions that result in a negative account balance. If there are multiple transactions, the bank may charge multiple fees. For example, with a $35 charge, three overdrafts in one day could result in fees of $105. 2. Opt into an overdraft protection plan that links a checking account to a backup savings account or line of credit. 3. Chose not to opt into any overdraft program. Instead, a transaction is declined by the merchant if the account lacks sufficient funds. This is the default setting when a bank account is opened, and no fee is incurred by a rejection of the transaction.

Civil consequences.. Ark. Code 4-60-103

(a) A person who issues a check that is not paid because the check was written on an account with insufficient funds has fifteen (15) days following the date of a written demand mailed or delivered to the drawer of the check at the address shown on the check or his or her last known address to pay to the holder of the check or his or her agent the amount of the check and a collection fee not to exceed thirty dollars ($30.00), plus the amount of any fees charged to the holder of the check by a financial institution as a result of the check's not being honored. (b)(1) A person who fails to make restitution as set forth in subsection (a) of this section and who fails to pay the amount of the check and a collection fee not to exceed thirty dollars ($30.00), plus the amount of any fees charged to the holder of the check by a financial institution as a result of the check's not being honored, within thirty (30) days following the date of a written demand mailed to the drawer by certified mail, return receipt requested, to the address shown on the check or his or her last known address is liable to the holder of the check or his or her agent for: (A) Twice the amount of the check, but in no case less than fifty dollars ($50.00); and (B) A collection fee not to exceed thirty dollars ($30.00), plus the amount of any fees charged to the holder of the check by any financial institution as a result of the check's not being honored. (2) The prevailing party may recover court costs and reasonable attorney's fees after suit has been filed. (c)(1) This section does not prevent the criminal prosecution of the person who issues the check. (2) However, any payment made by the defendant to a victim under an order for restitution entered in a criminal prosecution shall be set off against any judgment in favor of the victim in a civil action brought under this section arising out of the same facts or event.

What are the benefits?

-(same is true w a check) A (maker of a note) ... B (payee) ... C (3rd party) A 3rd party can be considered a holder in due course A (drawer) ... B (payee) ... C (3rd party) (a holder in due course who is entitled to protection of the law and vested with the right of debt collection must have purchased the right to collect on the debt (or been assigned the right to collect) while acting in good faith. The holder must have a check or another negotiable instrument, which was taken in exchange for value. the holder in due course must not have had any reason to suspect a problem with the negotiable instrument. The rules protecting the rights of a holder in due course to collect on debt are very important to facilitating business transactions. These rules make it possible for checks to move from bank to bank without worrying the check writer will try to assert a defense challenging the validity of the right to collect on the debt. When a check is written to someone who subsequently deposits the check, for example, the depository bank becomes the holder in due course. party who becomes the good faith holder of a negotiable instrument (such as a check, note, or draft), for value received, without knowledge of any claims against it, or that the instrument was dishonored when presented for payment, or in any way defective. the body of law governing legal contracts, the person holding a check endorsed by another is the presumed legal owner, and can sue in his or her own name. A person accepting a third party check is a holder in due course, and holds legal title to the instrument, regardless of any prior claims. Dictionary of Business Terms for: holder in due course good-faith holder who has taken a negotiable instrument for value, without notice that it was overdue or had been dishonored or that there was any defense against or claim to it. In property law, the innocent buyer or holder in due course is referred to as a bona fide purchaser. Dictionary of Real Estate Terms for: holder in due course one who acquires a bearer instrument in good faith and is eligible to keep it even though it may have been stolen. Example: Abel receives from Baker a $100 bill in payment of rent on his apartment. Police inform Abel that the bill was stolen by Baker from Cobb. Since the bill is bearer paper and Abel accepted it without knowing about the theft, he became a holder in due course and is allowed to keep it.

Remedies for copyright infringement*

-Actual or statutory damages -Criminal liability (either fine- more common- or imprisonment**) -The "first sale" doctrine: no liability! if first user (like a book) on campus, you can rent it/sell it to someone else

Kinds of indorsements

-Blank (bare paper), no further signatures* -Special- every exchange has to sign* (write pay to the next person on back & sign name) -Restrictive -Qualified (w/o recourse) (- all instruments have to be either blank or special w signature on back- main thing to know is diff btwn blank & special- what they look like)

Uses of negotiable instruments

-Form of credit (like a promissory note) -Means of payment (like a check) -Legal consequences of issuing a negotiable instrument (as used in this Law means bill of exchange, promissory note and cheque. ... Liability on a negotiable instrument as used in this Law means the obligation of a debtor to pay the sum payable by the instrument to the holder.)

Federal protection: The Lanham Act of 1946

-Infringement: the likelihood of confusion. owner need not prove that the infringer acted intentionally- (most common) -Dilution: lessoning the capacity of a "famous" mark to identify & distinguish goods/services regardless of the absence of competition. The Lanham Act was amended in 1995 by the Federal Trademark Dilution Act (amended in 2006)

Elements of federal registration

-Must be used in interstate commerce (or intend to do so w/in 6 mos.) -Constructive notice to all businesses that the mark is now owned -Can seek a remedy in federal court -Initial registration is good for 10 yrs -Cost is around $1,500. can be renewed at a cost of $400 a pop -Trademark owner can file the registration with US Customs to prevent importation of infringing goods

Summary of trademark law

-Trademarks may be obtained by federal registration, state registration, or common law -They can last forever -Common law, Cybersquatting Law, WIPO Arbitration

CH. 12: INTELLECTUAL PROPERTY (more questions on it!!- twice as many questions on intellectual property- trademark & copyright- v little on patent) -BLAW NOTES MISSED:

-Trademarks= word, name, symbol, design, color, sound, or combo used to identify & distinguish -CAN LAST FOREVER -Federal registration (patent & most expensive), State registration, common law -Avoid generic mark, use something original & it will last longer -Must be used in interstate commerce -Initial registration good for 10 yrs, can re-up forever -Limits to protection: does not prevent a prior user from continuing to use that name: Whatta-burger in Russellville

Another "common law case": PETA v. Doughney, US Court of Appeals, 4th Circuit, Aug. 2001

-registration of the domain name "peta.org" Defendant registered domain name "peta.org" (people eating tasty animals). He was sued for trademark infringement by the animal rights org. "PETA" HELD: for PETA. "A parody must convert 2 simultaneous -- contradicting messages; that it is the original, but also that it is not the original & is instead a parody... looking at Doughney's domain name alone, there is no suggestion that it is not the original."

Bank liability for forgeries: the basic rule

1. A forgery is not a legal signature 2. A bank which pays on a forgery cannot charge the customer's account 3. Exception: rule of negligence 4. 30 day rule: examining your bank statement

Is it a crime to issue a bad check?

A bad check is a check drawn on a nonexistent account or on an account with insufficient funds to honor the check when presented. "Passing" a bad check is illegal, and the crime can range from a misdemeanor to a felony, depending on the amount involved and in which state it occurred. -In some states there is a criminal offense only when the bad check is given in exchange for property or for a present consideration. In other states it is a criminal offense to issue a bad check with intent to defraud or with knowledge of insufficient funds.

Domain names

A domain name is a human-friendly form of an Internet address that is both easy to identify and to remember, such as <wipo.int> or <yahoo.com>. The domain name system operates on the basis of a hierarchy of names. The top-level domains are divided into two categories: the generic top-level domains (gTLDs) and the country code top-level domains (ccTLDs). The gTLDs .com, .net, .org and the subsequently introduced domains .aero, .biz, .coop, .info, .museum, .name, and .pro are managed by registry operators acting under the authority of the Internet Corporation for Assigned Names and Numbers (ICANN) The ccTLDs are administered by the competent national registration authorities. -As a result of the increased popularity and commercial use of the Internet, domain names have acquired the role of business identifiers and, in certain cases, even trademarks themselves, such as AMAZON.COM. By registering their marks and names as domain names, for instance <sony.com>, businesses attract customers to their web sites.

What is the diff. btwn order and bearer paper?

A negotiable instrument (e.g. a bond) which is payable to whoever has possession (is the bearer). Compare to an order paper which is only payable to the person named on the instrument. For example, a check is only payable to the person named on the check (the person to whom the paper orders the payment be made).

payor bank

A payor bank is any bank that must pay a check because it is drawn on the bank or accepted there—the drawee bank (a depository bank may also be a payor bank). A collecting bank is any bank except the payor bank that handles the item for collection. (Bank on which check drawn; bank ultimately responsible from granting funds for check)

Stop payment & liability

A stop payment occurs when the person who wrote the check changes his mind. The account holder contacts his bank to place a stop on the check so that when the recipient's bank attempts to cash it and collect the funds, the request is denied. In the case of a check cashing location, the check cashing business is the party that requests to retrieve the funds and as a result bears the cost due to the stop payment. Who Is Liable?: The person who received the funds from cashing the check is the party who walks away with the cash when a stop payment is issued. However, in many cases the payee (the person who wrote the check) is held liable for causing the problem. This is called a "holder in due course" argument, where the check cashing business demands payment from the payee after cashing the check in good faith. Other businesses may choose to pursue the customer to retrieve the funds instead. (Check cashing businesses, also known as money services businesses, provide customers with an easy way to turn their paycheck, or other checks, into cash without having to rely on a bank account. Check-cashing businesses generally stay open 24 hours, and give easy, quick access to cash when people need it.)

What Is a Third Party Check?

A third-party transaction is a business deal involving a buyer, a seller and a third party. (Sometimes, a person can write a check for you, and you can sign that check away to a third person, leaving it in their hands. This is what third party checking is: when person A writes a check made out to person B, but person C cashes that check. Third party checking is possible because person B can write instructions on the check, changing the party that the check is made out to to be person C.)

What can be copyrighted?

An original work in a tangible (permanent) medium... Common works that can be copyrighted= -literary works -musical works -dramatic works -motion pictures & audio/visual -choreographic works (been recently debated) (musical plays, ballets) (dance moves- answer no- not able to copyright)

Legal or illegal? You download 1,000 songs from the internet (w/o paying) & burn them onto numerous disks so that you can save some money.

Ans: Illegal (you are going to jail!)

What happens when a copyrighted work expires?

Ans: it falls into the "public domain"- anyone can use it (ex. happy bday). Copyrights don't last forever. issue that Disney is concerned with -Are these copyrights "alive" or "dead"? -Sherlock Holmes- dead- therefore you could use it -Gone with the Wind (book)- alive- 95 yrs

What risks might be associated with negotiable instruments?

Answer: risks associated with negotiable instruments might include restrictions placed on the transfer by one person or another. There might be a lack of funds being available when the instrument is used for payment.

More common remedy- Arbitration

Arbitration under the "Uniform Domain Name Dispute Resolution Policy," developed by the Internet Corporation for Assigned Names & Numbers (ICANN) -Cheaper & faster, but no damages -Most domain name disputes are resolved by: World Intellectual Property Organization (WIPO) -Domain name registered with provider. -How much money do you get? $0.0, but do get trade name

Certified vs. Cashier's

Both certified and cashier's checks can be considered "official checks." Both are used instead of cash, credit or personal checks, and both are used to guarantee payment. And, with rare exceptions, the purchaser can't stop payment on either type of check. --With a cashier's check, funds are drawn against the bank, not against a personal account, as is the case with a certified check. --There is one significant difference: With a cashier's check, the bank receives money from the purchaser, then issues the check and guarantees its payment at face value. Funds are drawn against the bank, not against a personal account, as is the case with a certified check.

the Fair Use doctrine**

Congress decreed that courts should consider 4 non-exclusive factors: 1. Purpose (ex. educational or profit) 2. Nature of the copyright material.= certain types of work are say to claim that one can use it (such as if a book is fiction). but if it's a history book- history is history 3. Amount & sustainability of the copyright material in relation to work as a whole.- how much do you copy? in relation to the whole work. 4. Impact of use on the market.- is there money involved? if not, usually ppl don't have much interest in going to court -If you have copied someone else's work that is copyrighted, then you've broken the law unless (EXCEPTION-- THE FAIR USE DOCTRINE) applies. establishes policy that federal judges are to use- identify 4 things that judges are to think about -**know these** (question will prob be which of these is not)

Cybersquatting

Cybersquatting involves the pre-emptive, bad faith registration of trademarks as domain names by third parties who do not possess rights in such names. Cybersquatters exploit the first-come, first-served nature of the domain name registration system to register as domain names, third parties' trademarks or business names or names of famous people, as well as variations thereof. A common motive for cybersquatting is the intention to sell the domain name back to the trademark owner or to attract web traffic to unrelated commercial offers. This practice of cyber- squatting gives rise to disputes between trademark owners and domain name registrants, which present features stretching the capacity of the ordinary judicial system. The judicial system is territorially based and thus cannot always provide a comprehensive solution to a conflict of global dimension. Furthermore, court litigation can be slow and expensive, factors that can produce a de facto situation in which it may be quicker and cheaper for a trademark holder to buy back its rights to a domain name from the cybersquatter, rather than seek to retrieve those rights through litigation. What was needed was an effective alternative mechanism to deal with what are frequently cross- border disputes.

Scherer v. Hyland

FACTS: Catherine wrote a note to Robert before committing suicide- the police got the check- constructive delivery Brief Fact Summary: Plaintiff, Mr. Scherer, lived with Decedent for fifteen years. The Decedent was injured in a car wreck and became very depressed. She received a settlement check from a lawsuit over the wreck and endorsed the check and left a suicide note which stated her intent to give all her possessions to Plaintiff, including the check, and then jumped to her death. Synopsis of Rule of Law: The gift causa mortis is valid where there is evidence of the donor's intent to make the transfer and the facts here support a finding that the rule requiring delivery of the gift should be relaxed because the situation is incompatible with making actual delivery. (He couldn't claim ownership)

Use in Commerce

For a mark to be eligible for trademark protection, it must be used in commerce. This is because trademark law is grounded in the ability of Congress to regulate interstate commerce granted by the Constitution. The Lanham Act defines a trademark as "a mark used in commerce, or registered with a bona fide intent to use it in commerce." (is sufficient evidence of good faith) There is an exception to this rule. If a mark isn't in use in commerce at the time that the applicant files a trademark application, it's OK. But, the applicant must establish in writing that he will make a good-faith attempt to use the mark in commerce sometime in the future. The Lanham Act also grants exclusive rights to a trademark to the person who uses it first in commerce. So, while a trademark application that is submitted to the USPTO is important when attempting to register a trademark for your business, it is also vitally important that you use the trademark.

Postdated checks:

if you write a postdated check, the bank has a legal right to pay it, but a postdated check has NO present value. (they'll pull the currency from the account that it comes from, but don't get the payment/value of it until the future date). (People usually postdate checks when they want the recipient (the person or business receiving the payment, also known as the payee) to wait before depositing the check. Two potential reasons for this include: The check writer does not have sufficient funds available when writing the check, but those funds will be available on the future date. The check writer is paying for something ahead of time — before the payment is due or the service has been completed, for example.) (Postdating a check refers to writing a check but putting a future date on the check instead of the date that the person writes the check. People typically postdate checks intending that the recipient not deposit or cash the check until a later date, because payment is not due until that later date.) -Postdating a check to a later date is not illegal, but the check recipient is not legally bound to wait until the postdate to cash it. The involved financial institution is not obligated to delay processing it unless the check writer provides a note on the postdate. That is according to the Uniform Commercial Code which establishes guidelines based on business laws practiced in most states. -Realistically, the recipient of a post dated check may never notice that the check has been post dated, and so will record and deposit it at once. The bank is also unlikely to notice the date on the check. In this situation, the check is considered a negotiable instrument, irrespective of the date, and it is likely that the recipient will receive cash from the bank prior to the date on the check. In such a situation, it is allowable for the check recipient to record a post dated check upon receipt of the check. -From the perspective of the payer, the best way to ensure that funds are not released early is to notify the bank not to release funds against this check any earlier than the date stated on the check.

Restrictive indorsement-

includes the payee's signature & instructions that limit the instrument to a particular use. generally, is not effective to prevent further negotiation of the paper. there are, however, special rules that apply to certain restrictive indorsements of checks. --a conditional indorsement including words such as, "pay Tom if he washes my car" is ineffective. it doesn't qualify as a restrictive indorsement & doesn't limit negotiability -attempts to limit payment to a particular person or otherwise prohibit further transfer or negotiation. is usually invalid. however 2 legitimate are valid: collection & trust indorsements Ex.: signing the instrument & writing "For Deposit Only" is a restrictive indorsement on a check besides a signature of the indorser, has information about how to negotiate a check. For instance, a restriction such as "For Deposit Only" allows to deposit, but not to cash, a check. It is convenient and safe to use this type of indorsement if you mail the check. For example, Marry Smith signs a check made payable to her order as "For Deposit to Account No. 12345678." This indorsement will only allow depositing this check into the named bank account.

Special indorsement-

is a signature & instruction that limits the instrument to a particular person. a special indorsement may limit the indorser's potential liability, but it is not effective to prevent further negotiation by the holder -sometimes known as an "indorsement in full," names the transferee-holder. The payee of a check can indorse it over to a third party by writing "Pay to the order of [name of the third party]" and then signing his name -Once specially indorsed, the check (or other instrument) can be negotiated further only when the special indorsee adds his own signature. -The dichotomy here of indorsement in blank or special indorsement is the indorser's way of indicating how the instrument can be subsequently negotiated: with or without further indorsing. Ex.: Isabelle writes "Pay Tom" or "Pay to the Order of Tom" on a note along with her signature. remember, however, the paper must contain "to order" to remain negotiable. also, "Pay to the Order of Tom" establishes the paper as order paper, but it doesn't restrict Tom's abilities. Tom can indorse the paper & negotiate it --Looks like: made by writing the words "pay to the order of" or "pay to", followed by the name of the person to whom it is to be transferred (indorsee) & the signature of the indorser 1.Special or full endorsement is that which contains not only the name of the endorser but also the name of the endorse. 2. The effect of special endorsement is that the endorse must endorse it again if he wants to transfer the property in the cheque to somebody else. consists not only of a signature of the indorser but also words indicating to whom, or in whose order, the check is payable (i.e., indorsee). Nobody besides the indorsee can use or fulfill the check. That is why this type of indorsement is safer than a blank indorsement. There may be one or more indorsees on a check with a special indorsement. In the case of multiple indorsees, one or all indorsees will need to sign the check to negotiate (e.g., transfer) it, depending on what relationship (and, or, or just commas) was used with the indorsees' names when the check was initially indorsed (signed). All indorsees need to sign the check if their names are connected with an and. Either indorsee needs to sing the check if their names are connected with an or. In case the indorsees' names are listed with commas it is assumed that an and was used and all indorsees need to sign the check to negotiate it. For example, Marry Smith signs a check made payable to her order as "Pay to the Order of John Doe and Anna Vermont." Both John and Anna will have to sign the beck if they want to deposit it in a bank account. On the other hand, if Marry signs the check as "Pay to the Order of John Doe or Anna Vermont," then either John or Anna will have to sign the check to deposit it.

Requirements btwn Holder & Holder in Due Course (continuation)

Holder in Due Course called protected holder or bona fide holder for value. So Holder in Due Course means; -If payment is not made on a negotiable instrument when it is due, the holder can use the court system to enforce the instrument. -Various parties, including both signers and non-signers, may be liable for it. -Accommodation parties (i.e., guarantors) can also be held liable. For example; A third-party check is a holder in due course. The holder of a negotiable instrument means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. A person is called the holder of a negotiable instrument if the following conditions are satisfied: -He must be entitled to the possession of the instrument in his own name and under a legal title. -He must be entitled to receive or recover the amount from the parties concerned in his own name. The holder in due course is a particular kind of holder. The holder of a negotiable instrument is called the holder in due course if he satisfied the following conditions; -The negotiable instrument MUST be in possession of the holder in due course (unlike w the holder) -The negotiable instrument must be regular and complete in all respects. -He obtained the instrument for valuable consideration. -He becomes the holder of the instrument before its maturity before the amount mentioned in it become payable. -He has no cause to believe that any defect existed in the title of the person from whom he derived his title. Requirements for Holder in Due Course Status To qualify as an HDC, the transferee must meet the requirements established by the UCC The person must be the holder of a negotiable instrument that was taken: -For value. -In good faith. -Without notice that it is overdue, dishonored, or encumbered in any way, and -Bearing no apparent evidence of forgery, alterations, or irregularity. Differences between Holder and Holder in Due Course The definition of the terms ''holder" and holder in due course we may derive the following points of difference between them. -Consideration The existence of consideration is not essential in case of the holder but a holder in due course obtains the instrument after paying its full value. -Possession The person entitled to be called holder in due course must become the possessor of the instrument before it becomes payable. Whereas in case of holder neither actual possession nor any time limit within which it must be acquired is required. -The defect in the transferor's title The most important point of difference is that holder in due course acquires an instrument without having sufficient cause to believe that any defect existed in the title of the transferor. It means the holder in due course must obtain an instrument after taking all possible care about transferors' good title. This condition is not essential in case of the holder. A holder in due course possesses the right to sue upon the instrument in his own name to recover the amount of the instrument from liable party to pay other on.

Differences between Holder & Holder-In-Due-Course

Holder means any person entitled in his name to the possession of negotiable instrument and due to recover or receive the amount due thereon from the parties thereto. A holder in due course means a holder who takes the instrument in good faith for consideration before it is overdue and without any notice of defect in the title of the person who transferred it to him. * Consideration- A person who claims to be a holder in due course must show that he acquired the instrument for consideration. Consideration, however, may not pass from a holder of the instrument. (CONSIDERATION. The inducement, price or motive that causes a party to enter into an agreement or contract. Something of value that is given in exchange for getting something from another person. ... Negotiable instruments, as bills of exchange and promissory notes, carry with them prima facie evidence of consideration.) * Title- holder of negotiable instrument does not acquire a better title than that of the person from whom he acquired the instrument.. As such a holder does not acquire good title if the title of any of the prior parties is defective. But a holder in due course gets a good title even though there was a defect in the title of any prior parties to the instrument. * Liability- A holder in due course can sue all prior parties to a negotiable instrument until the instrument is duly satisfied, while a holder of the instrument can enforce it against the person who has sighed it and also against the transferor or from whom he obtained it. * Maturity- A person will be a holder in due course only if he acquires the instrument before the amount mentioned in it become payable. But a holder may acquire the instrument even after it has become due for payment. (Any one can simply hold an instrument however it reaches to him or her. On the other hand in due course can be either he is the payee or drawer or endorsed to him or her through systematic handover of the instrument.)

Fanciful/Arbitrary

If a mark is considered arbitrary or fanciful it is inherently distinctive. A distinctive mark is awarded trademark protection under trademark law by priority of use. This means that the first person to use the mark owns the trademark. This type of mark also bears no connection to the underlying product. For example, Exxon, Kodak, and Apply would fall under this category of trademark. These marks are afforded some of the highest degree of protection under trademark law because they are capable of identifying and underlying product while being distinctive.

Copyright: def-

"The Congress shall have the power to... promote the Progress of Science and useful Arts, by securing for limited times to *authors* & inventors the exclusive right to their respective Writings & Discoveries..." -Article 1 Sect. 8 in Constitution-- Congress has powers to promote science (patents) & the useful arts (copyrights). Copyright law based on Constitution & therefore is ONLY FEDERAL LAW**

Legal or illegal? You make a copy of a CD that you just bought & give it to your girlfriend for her birthday.

Ans: Illegal

Legal or illegal? You use the money you saved to buy cocaine.

Ans: Illegal (probation only)

*So what's the deal with "razorback pizza"?

Ans: the "grandfather" policy! -otherwise, be prepared to pay A grandfather clause (or grandfather policy or grandfathering) is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from the new rule are said to have grandfather rights or acquired rights, or to have been grandfathered in.

Registration of a trademark -Even tho a trademark is "forever",

**perpetually forever. 10 yrs but can re-up -some marks have fallen into the public domain due to common usage by the public

How to obtain a trademark

-Federal registration: US Patent and Trademark Office -State registration -Common law

Stale checks:

a stale check may still be paid by the bank if they choose to do so, BUT they don't have to. (Stale check is a check that is presented to be cashed or deposited at a bank six months or more after the date it was written. The date when the check is presented to be cashed or deposited in a bank account is known as the payment date.) *time period= if the check is older than 6 mos., the bank is under no obligation to honor that check. -IBP v. Mercantile Bank, 6 F. Supp.2d 1258 (US District Court, Kansas, 1998) Ruling: the check was stale but the bank could still choose to pay the check