Business Law Exam #2

cyber fraud

fraud that involves online theft of credit card info, banking details, and other info for criminal use

patent

government grant giving inventor exclusive right or privilege to make, use or sell her invention for limited time. inventions: 20 yrs design: 14 yrs

civil law

in this law the evidence is preponderance more than 50% must support. one group suing another group.

private figure

individual not involved in public issued or employed as public official. (only need to prove an alleged defamatory statement was negligently made)

public figure

individual who has because of their activities, commanded sufficient continuing public interest (must prove actual malice to recover damages)

trade secrets

info or process that gives business an advantage over competitors who don't know (customer lists, plans, r&d, marketing methods)

malware

malicious software programs designed to harm computer, network, or smartphone device

collective mark

mark used by members of a cooperative association or other organization to certify region materials mode of manufacture quality or accuracy of specific good or services. (credits of movies indicated organizations that participated in it)

certification mark

mark used by someone other than owner to certify the region materials mode of manufacture quality or accuracy of owners good or services (seal of approval)

service mark

mark used in the sale or advertising of services to distinguish the services of one person from services of others. (titles, character names, radio)

fair use

passed to allow balance between copyright monopoly and society. factors to determine; 1. nature of work 2. amount and substantiality of material used in comparison with whole

intellectual property rights

property resulting from intellectual, creative processes (i.e. patents, trademarks, copyrights)

copyright act of 1909

protects authors and other creative persons from unauthorized use of their copyrighted materials to provide financial incentive for artists to produce more work. (protection lasts 70 years beyond death or 95 for anonymous works)

image rights

relates to a person's name or likeness such as photo or other visual representation of person.

recission

remedy where contract is canceled and parties are returned to positions occupied before contract was made

nominal damages

small monetary award (sometimes $1) granted to a plaintiff when no actual damage as suffered when the plaintiff is unable to show such loss with sufficient certainty

consequential damages

special damages that compensate for a loss that not direct or immediate (i.e. lost profits)

trade name

term used to indicate part of business name and is directly related to business' reputation and goodwill (protected under common law when unusual or fancifully used) (protected under trademark law when the same as trademark)

1. must be original 2. must be in some tangible form that can be reproduced

the 2 fundamental criteria for copyright work

1. truth 2. privelege

the two defenses to defamation

1. absolute privilege 2. qualified privilege 3. fair comment

the types of privileges: 1. congress people 2.certain situations, individual managers talking about employee performance to a superior 3. people being analyzed on newspaper or something like that

consideration

the value given in return for a promise or a performance. must be 1. something of legally sufficient value 2. bargained for

1. discovered secret by improper means 2. disclosure or use constitutes a breach of duty owed to other party

those who discuss or use another's trade secrete without permission are liable if either is true

suggestive

trademark indicates something about a products nature, quality, or characteristics without describing the product directly (dairy queen)

1. fanciful 2. arbitrary 3. suggestive

trademarks considered 'strong marks' are distinctive and have the following 3 characteristics

arbitrary

trademarks use common words in uncommon way not descriptive of product (dutch boy as name for paint)

fanciful

trademarks used with invented words (google, xerox)

burglary

unlawful entry into a building with intent to commit felony

punitive damages

very seldom awarded in lawsuits for breach of contract Designed to punish wrongdoer and set an example to stop similar conduct in the future, they have no legitimate place in contract law

license

way to avoid litigation and still make use of another trademark or other form of intellectual property is to get a ?

anything except laws of nature natural phenomenon abstract ideas

what is patentable

larceny

wrongful taking and carrying away of another person's personal property with intent to permanently deprive owner of property

4 requirements of a valid contract

1. agreement 2. consideration 3. contractual capacity 4. legality

types of damages

1. compensatory 2. consequential 3. punitive 4. nominal (breach of contract entitles other person to sue for monetary damages)

elements required for defamation claim

1. false and defamatory statement of act 2. Publication to a third party 3. Fault or negligence of the publisher 4. Damage or actual injury

4 kinds of invasion privacy

1. intrusion on one's seclusion or solitude, into her private affairs 2. public disclosure of embarrassing private facts 3. publicity which place one in a false light 4. appropriation of one's name or likeliness (varies state to state)

termination of operation by law

1. lapse of time 2. destruction of specific subject matter of offer 3. death or incompetence 4. supervening illegality of proposed contract

criminal process

1. must be a probable cause 2. formal charge before bringing to trial 3. prosecution must show defendant's guilt is established beyond a reasonable doubt at trial

categorization of individuals

1. public officials 2. public figures 3. private figures (public figures and public officials are allowed to be spoken against)

types of crimes

1. violent crime 2. property crime 3. public order crime 4. white-collar crime 5. organized crime

right of publicity defenses

1st amendment 1. newsworthiness doctrine 2. incidental use exception 3. parody defense

1. slander 2. libel

2 types of defamation

1. serious intention 2. reasonably certain 3. communication

3 elements necessary for an offer (made as part of an agreement)

1. brevity 2.spontaneity 3. cumulative effect

3 things they look for in educational fair use in terms of copyright law.

liquidated damages

Liquidated Damages - an amount, stipulated in contract, that parties to a contract believe to be a reasonable estimation of the damages that will occur in the event of a breach (enforceable) Pre Written into the contract Enforceable by court

Enforceability: to determine, court must ask 2 questions:

When the contract was entered, was it apparent that damages would be difficult to estimate in event of breach? Was the amount set as damages a reasonable estimate and not excessive? If answer to both is yes, → enforceable

the lanham act

a federal trademark acts that protects consumers and competitors from a wide variety of misrepresentations of products and services in commerce including unauthorized use of individuals image rights

mitigation of damages

a rule requiring plaintiff to have done whatever was reasonable to minimize the damages caused by the defendant Rental Agreements - some states require landlord to find a new tenant if a tenant abandons the premises or faults to pay Employment Contracts: in majority of states, a person employed who has been wrongfully terminated owes a duty to mitigate the damages that he or she suffered (they have duty to find another similar job if one is available)

digital millennium copyright act

act passed to take responsibility off provider of websites making infringing easy and pass it on to actual infringer

economic espionage act

act that makes theft of trade secrets a federal crime

computer fraud and abuse act

act that provides a person who accesses a computer online without authority to obtain protected data is subject to criminal prosecution.

ratification

an intoxicated person after becoming sober may ratify a contract

1. revocation 2. rejection 3. counteroffer

an offer may be terminated by action in any of 3 ways

computer crime

any violation of criminal law that involves knowledge of computer technology for its perpetuation, investigation, or prosecution (cyber crimes)

forms of malware

botnet - short for robot network, group of computers that run an app controlled by software source worm - designed to copy itself from one computer to another without human interaction. virus - transmitted between computers and attempts to do deliberate damage to systems and data

ursury

charging an illegal rate of interest

felony

classification of crime that carries most severe sanctions, punishment is one year and up

petty offense

classification of crime that is least serious criminal offense such as traffic violation

misdemeanor

classification of crime that is lesser crime than a felony, punishable by fine or imprisonment less than a year

slander

defamatory comments made orally.

libel

defamatory comments, photographs or cartoons made in print.

court papers, foreclosures, divorce decrees

e signature does not apply to

restitution

equitable remedy under which person is restored to his or her original positions or position they would have been in had the breach not occurred

copyrights

exclusive right of author to publish, print, or sell an intellectual production for statutory period of time. (applies to art, literature, other wors of authorship, computer programs)

criminal law

for this type of law: must be proven without a reasonable doubt 90 - 95% evidence must support plaintiff is the people. prosecutor is the state

compensatory damages

Compensate only for damages actually sustained and proved to have arisen directly from the loss of bargain caused by breach of contract