Business Law Quiz 4 Information

Criminally Reckless

A defendent is this is he or she consciously disregards a substantial and unjustifiably risk.

Actus Reus

A guilty (prohibited) act.

Involuntary Manslaughter

A homicide is classified as this when it results from an act of criminal negligence and there is no intent to kill.

Trademark Registration

A person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. A mark can be registered 1. if it is currently in commerce or 2. if the applicant intends to put the mark into commerce within six months. This is renewable between teh 5th and 6th years after the initial registration and every 10 years thereafter.

Cyber Marks

A trademark in cyberspace.

Bait-and-Switch Advertising

Advertising a very low price for a particular item and then encouraging the consumer to purchase a more expensive item. This occurs if the seller refuses to show the advertised item, fails to have reasonable quantities of it available, fails to promise to deliver the advertised item within a reasonable time, ot discourages employees from selling the item.

Areas Governed By Consumer Law

Advertising, Labeling and Packaging, Sales, Credit Protection, Product Safety, Food and Drugs

Protection of Health and Safety

Although labeling and packaging laws promote consumer health and safety, there is a significant distinction between regulating the information dispensed about a product and reulating the actual content of the product.

What is Patentable?

An invention must be novel, useful, and not obvious in light of current technology. Plants that are reproduced asexually such as hybrid or genetically engineered plants, are patentable in the US, as are genetically engineered micro-organisms and animals.

Criminal Law

Has to do with crime. Burden of Proof: Beyond a reasonable doubt. Remedy: Punishment

Patent Infringement

If a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission, it commits this tort. This may occur even though the patent owner has not put the patented product in commerce. This may also occur even tough not all features or parts of an invention are copied.

Remedies for Patent Infringement

If a patent is infringed, the patent holder may sue for relief in federal court. The patent holder can seek an injunction against the infringer and can also request damages for royalties and lost profits.

The "Fair Use" Exception

In certain circumstances, a person or organization can reproduce copyrighted material without paying royalites. This includes use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. It will not be seen as an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copurighted work as a whole 4. The effect of the use upon the potential market for or value of the copyrighted work.

Labeling and Packaging

In general labels must be accurate, and they must use words that are understood by the ordinary consumer. Labels must specify the raw materials used in the product. In other instances, the product must carry a warning, such as those required on cigarette packages and advertising.

Service Mark

Is essentially a trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

Distinctiveness of the Mark

Only those trademarks that are deemed sufficiently distinctive from all competing trademarks will be protected. Fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive (strongest) marks.

Registration of a trademark

Registration of a trademark with the U.S. Patent and Trademark Office gives notice on a nationwide basis that the trademark belongs exclusively to the registrant. The registrant is also allowed to use the symbol R to indicate the mark has been registered.

The First Sale Doctrine

Section 109a of the Copyright Act--Also known as this--provides that "the owner of a particular copy or phonorecord lawfully made under [the copyright act], or any person authorized by such owner is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Food Labeling

The Nutrition Labeling and Education Act requires food labels to provide standard nutrition facts and regulates the use of such terms as fresh and low fat.

Physical Attack as a Tort

The assailant commits an assault and a battery. Carlos files a civil suit against the assailant. A court ordeers the assailant to pay Carlos for his injuries.

Physical Attach as a Crime

The assailant violates a statute that defines and prohibits the crime of assault and battery. The state prosecutes the assailant. A court orders the assailant to be fined or imprisoned.

Food and Drugs

The most important legislation regulating food and drugs is the Federal Food, Drug, and Cosmetic Act (FDCA)

Menu Labeling

The provision requires all restaurant chains with twenty or more locations to post the caloric content of the foods on their menus so that customers will know how many calories they are eating.

Trademark Infringement

The remedy that is most commonly granted for this is an injunction to prevent further infringement. A court can also order the destruction of any goods bearing the unauthorized trademark.

Mens Rea

The wrongful mental state ("guilty mind"), or intent, that is one of the key requirements to establish criminal liability for an act.

Online Deceptive Advertising

These guidelines include the following 3 basic requirements: 1. All ads--both online and offline--must be truthful and not misleading 2. The claims made in an ad must be substantiated--that is, advertisers must have evidence to back up their claims 3. Ads cannot be unfair, which the FTC defines as "likely to cause substantial consumer injury that consumers could not reasonably avoid and that is not outweighed by the benefit to consumers or competition. These guidelines also call for "clear and conspicuous" disclosure of any qualifying or limiting information.

Cooling-Off Laws

These permit the buyers of goods sold door to door to cancel their contracts within 3 business days.

Federal Trademark Dilution Act

This allowed trademark owners to bring a suit in federal court of trademark ____. These laws protect "distinctive" or "famous" trademarks from certain unauthorized uses even when the use is on noncompeting goods or is unlikely to confuse.

Fair Debt Collection Practices Act

This attempts to curb abuses by collection agencies. Under this, a collection agency may not do any of the following: 1. Contact the debtor at the debtor's place of employment if the debtor's employer ojects 2. Contact the debtor at inconvenient or unusual times. 3. Contact third parties other than the debtor's parents, spouse, or financial advisor unless a court authorizes such an action. 4. Harass or intimidate the debtor 5. Communicate with the debtor at any time after receiving notive that the debtor is refusign to pay the debt, except to advise teh debtor of further action to be taken by the collection agency.

Deceptive Advertising

This generally occurs if a reasonably consumer would be messed by the advertising claim. Vague generalitites and obvious exaggerations (that a reasonable person would not believe to be true) are permissable (puffery).

Trademark

This is a distinctive word, symbol, sound, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by others.

Patent

This is a grant from the government that gives an inventor the exclusive right to make, use, adn sell an invention for a period of twenty years. These are given for a fourteen-year period.

Truth in Lending Act

This is a key statute regulating the credit and credit-card industries. It is administered by the Federal Reserve Board and requires sellers and lenders to disclose credit terms or loan terms so tha tindividuals can shop around for the best financing arrangements.

Corporation

This is a legal entity create under the laws of a state. Although this is a legal person, it can act only through its agents (corporate directors, officers, and employees). Today, these are normally liable for the crimes committed by their agents and employees within the course and scope of their employment.

Copyrights

This is an intangible property right ranted by federal statute to the author or originator of certain literary or artistic productions. Statutory protection for this lasts for the life of the author plau 70 years.

Intellectual Property

This is ant property resulting from intellectual, creative processes--the products of an individual's mind.

Credit Protection

This is one of the most important aspects of consumer protection legislation.

Domain Name

This is part of an internet address, such as "engage.com" The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit corporation, oversees the distribution of domain names and operates an online arbitration system.

Certification Mark

This is used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of special goods or services.

Trade Names

This is used to indicate part or all of a business's name., whether the business is a sole proprietorship, a partnership, or a cooration. Trade names may be protected as trademarks if the trade name is the same as the company's ttrademarked product.

Trade Secret

This law protects some business processes and information that are not or cannot be protected under patent, copyright, or trademark law against appropriation by a competitor. This is basically information of commercial value. Unlike copyright and trademark protection, protection of this extends both to ideas and to their expression.

Anti-Cybersquatting Legislation

This makes it illegal to "register, traffic in, or use" a domain name 1. if the name is identical or confusingly similar to the trademark of another and 2. if the person registering, trafficking in, or using the domain name has a "bad faith intent" to profit from that trademark.

Cybersquatting

This occurs when a person registers a domain name that is the same as, or confusingly similar to, the trademark of another and then offers to sell the domain name back to the trademark owner.

Criminal Negligence

This occurs when the defendant takes an unjustified, substantial, and foreseeable risk that results in harm.

Equal Credit Opportunity

This prohibits the denial of credit solely on the basis of race, religion, national origin, color, gender, marital status, or age.

Fair Credit Reporting Act

This protects consumers against inaccurate credit reporting and requires that lenders and other creditors report correct, relevant, and up-to-date information. This act provides that consumer credit reporting agencies may issue credit reports only for specified purposes. Any time a consumer is denied credit or insurance on the basis of his or her credit report, the consumer must be notified of that fact and of the name and address of the credit reportign agency that issued the report.

Trade Dress

This refers to the image and overall appearance of a product.

Disclosure

This requirement is found in Regulation Z, issued by the federal reserve board of Governors.

The Telemarketing Sales Rule

This requires a telemarketer to identify the seller, describe the product being sold, and disclose all materials facts related to the sale. An amendment was made to this: The national Do Not Call Registry

Civil Law

This spells out the duties that exist between persons or between persons and their governments, excluding the duty not to commit crimes. Burden of proof: Preponderance of the evidence. Remedy: Compensation

The Lanham Act

This was enacted in part to protect manufacturers from losing business to rival companies that used confusingly similar trademarks. Statutory protection of trademarks and related property is provided at the federal level by this.

Remedies for Copyright Infringement

Those who infringe copyrights may be liable for damages or criminal penalties. Statutory damages can go up to $150,000.

What is Protected Expression?

To obtain protection under the Copyright Act, a work must be original and fall into one of the following categories. 1. Literaty works 2. Musical works and accompanying words 3. Dramatic works and accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic, and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. Architectural works

Criminal Liability

Two elements normally must exist simultaneously for a person to be convicted of a crime. 1. The performance of a prohibited act. 2. A specified state of mind or intent on the part of the actor.

Compilations of facts

Unlike ideas, these are copyrightable. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that resulting work as a whole constitutes an original work of authorship. Key requirement for copyrightability of a compilation is originality.

Collective Mark

When used by members of a cooperative, association, labor union, or other organization, a certification mark is referred to as this.

Copyright Infringement

Whenever the form or expression of an idea is copied, this occurs. If a substantial part of the original is reproduced this has occured.

Section 102 Exclusions

It is not possible to copyright an idea. Others can freely use the underlying ideas or principles embodied in a work. What is copurightable is the particular way in which an idea is expressed.