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69 Cards in this Set
- Front
- Back
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trademark
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trademark- a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or orhterwise affixes to the goods it produces so they can be identified on the market and their origin made known
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service mark
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service mark- words/names/symbols/devices a company uses to distinguish its services
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trade dress
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trade dress- the environment of a business---ex: hooters with orange shorts and boobs
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trademark dilution
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trademark dilution- one can't use the same mark on "related" goods or services that would confuse consumers
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patent
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patent- gives inventor the rights to exclude others from making, using and selling an invention for a periof of 20 years from the date of filing the application for a patent
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copyright
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copyright- intangible property right granted by federal statute to the author or originator of a literary or artistic production. Works are given statutory copyright protection for the life of the author plus 70 years
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trade secret
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trade secret- info that a business possesses and gives the owner an advantage over competitors (formulas, lists, patterns etc.) trade secrets are unlimited so long as the secrets aren't revealed, once they are revealed they are no longer trade secrets
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trademark infringement
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trademark infringement- when a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally. when a trademark has been infringed, the owner of the mark has a cause of action against the infringer, a person need not have registered a trademark in order to sue for trademark infringement
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collective mark
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collective mark- used by members of a cooperative, association, or other organization (like "Good Housekeeping Seal of Appproval")
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cybersquatting
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cybersquatting- 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
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metatags
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metatags- key words which are inserted into a web site's key word field to increase the sits's inclusion in search engine results
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licensing trademarks
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licensing trademarks- a license in this context is essentially an agreement permitting the use of a trademark, copyright, patent, or trade secret for certain purposes (for example, a licensee might be allowed to use the trademark of the licensor as part of the name of its company or part of its domain name without otherwise using the mark on any products or services) often selling a license to an infringer is an inexpensive solution to litigation
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fair use
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fair use- an exception to liability for copyright infringement. (criticism, comment, news reporting, teaching, scholarship, or research are not infringements of copyright)
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sole proprietorship
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sole proprietorship- the owner is the business; thus anyone who does business without creating a separate business organization has a sole proprietorship
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advantages of sole proprietorship
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advantages of sole proprietorship:
proprietorship receives all profits (because they assume all risk), it is often less costly, it provides more flexibility, the proprietorship can make all decisions, pays only personal income taxes on the business's profits---which are reported as personal income on the propeietor's personal income tax return, they are also allowed to establish tax-exempt retirement accounts |
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disadvantages of sole proprierorship
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disadvantaged of sole proprietorship-
the proprietor alone bears the burden of any losses or liabilities incurred by the business enterprise, UNLIMITED LIABILITY, lacks continuity on the death of the proprietor (when the proprietor dies, the business dies), the proprietor's opportunity to raise capital is limited to personal funds and the funds of those who are willing to make loans to him or her |
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franchise
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franchise- any arrangement in which the owner of a trademark, a trade name, or a copyright licenses others to use the trademark, trade name, or copyright in the selling of goods and services
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distributorship
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distributorship- arises when a franchisor licenses a franchisee to sell its product (think: car dealership)
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chain-style business operation
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chain-style business operation- a franchise operates under a franchisor's trade name and is identified as a member of a select group of dealers that engage in the franchisor's business (think: McDonald's...or any other fast food place)
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manufatrucing plant or processing plant arrangement
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manufacturing plant or processing plant arrangement- the franchisor transmits to the franchisee the essential ingredients or formula to make a particular product. the franchise then markets the product either at wholesale or at retail in accordance with the franchisor's standards. (think: coca-cola bottling companies)
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FTC
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FTC- Its principal mission is the promotion of "consumer protection" and the elimination and prevention of what regulators perceive to be harmfully "anti-competitive" business practices, such as coercive monopoly.
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franchise requirement
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franchise requirements- the franchise relationship is defined by a contract between the franchisor and the franchisee. the contract specifies the terms and conditions of the franchise and spells out the rights and duties of the franchisor and franchisee (some things might include: payment for the franchise, business premises, location of the franchise, business organization, quality control, and pricing arrangements)
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franchise termination
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franchise termination- the duration of the franchise is a matter to be determined between the parties. generally, a franchise relationship starts with a short trial period (such as a year) so that the franchisee and the franchisor can determine whether they want to stay in business with one another
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good faith and fair dealing
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good faith and fair dealing- if a court perceives that a franchisor has arbitrarily or unfairly terminated a franchise, the franchisee will be provided with a remedy for wrongful termination
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partnerships
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partnerships- arise from an agreement, express or implied, between two or more persons to carry on a business for profit. partners are co-owners of a business and have joint control over its operation and the right to share its profits
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what kind of law are partnerships governed by?
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partnerships are governed by COMMON LAW and by STATUTORY LAW
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what are the three things that the courts determine a partnership?
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the courts consider it a partnership if:
1. a sharing of profits of losses 2. a joint ownership of the business 3. an equal right in the management of the business |
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does joint ownership of peoperty create a partnership?
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NO, joint ownership of property does not create a partnership
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does the sharing of profits from ownership of property prove the existence of a partnership?
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NO, sharing profits from ownership of property does not prove the existence of a partnership. HOWEVER, sharing both profits AND losses usually does
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A partnership is an entity
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a partnership is an entity and it may sue and may be sued in the name of the partnership. a partnership may hold title to real or personal property in its name rather than in the names of the individual partners. Also, federal procedural laws frequently permit a partnership to be treated as an entity in such matters as lawsuite in federal courts, bankruptcy proceedings, and the filing of federal tax returns
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does a partnership pay taxes?
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NO! the partnership itself has no tax liability and is responsible only for filing an information return with the IRS. in other words, the firm itself pays no taxes. the income and losses it incurs are "passed through" the partnership framework and attributed to the partners on their individual tax returns
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what types of agreements are there to form partnerships?
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agreements to form a partnership can be oral, written, or implied by conduct. some must be in wring to be legally enforceable within the statue of frauds (for example: a partnership agreement that authorizes the partners to deal in transfers of real property must be evidenced by a sufficient writing
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Uniform partnership act (UPA
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UPA- governs the operation of partnerships in the absence of express agerement and has done much to reduce controversies in the law relating to partnerships
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management issues with partnerships
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management issues with partnerships- in a general partnership, "all partners have equal rights in the management and conduct of partnership business." often, in a large partnership, partners will agree to delegate daily management responsibilities to a management committee made up of one or more of the partners. the majority tulr controls decisions on ordinary matters connected with partnership business, unless otherwise specified in the agreement. decisions that significantly affect the nature of the partnership or that are not apparently for carrying on the ordinary course of the partnership business, or business of the kind however require unanimous consent of the partners
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what are the fidicuary duties of partners in partnerships?
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partner's fidicuary duties include: each partner is an agent of every other partner and acts as both a principal and an agent in any business transaction within the scope of the partnership agreement. each partner is also a general agent of th partnership in carrying out the usual business of the firm. thus, every act of a partner concerning partnership business and every contract signed in the partnership's name bind the firm.
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how are partners in a partnership compensated?
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how are partnerships compensated- a partner is entitled to compensation for services in winding up partnership affairs (and reimbursment for expenses incurred in the process) above and apart from his or her share in the partnership profits)
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in partnerships, who gets to see the books?
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in partnerships, each partner has the right to receive rull and complete information concerning the conduct of all aspects of partnership business. every partner, active or inactive, is entitled to inspect all books and records on demand and can make copies of the materials. the personal representative of a dead partner's estate has the same rights to access the books as the person did when they were alive
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is an accounting of partnership assets or profits required to determine the value of each partner's share in the partnership?
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yes, an accounting of partnership assets or profits is required to determine the value of each partner's share in the partnership. a partner has the right to bring an action against the partnership or another partner, with or without a formal accounting, in the following situations: to enfore the partner's rights under the partnership agreement, to enforce the partner's rights under the UPA, and to enforce the partner's rights and interests arising independently of the partnership relationship
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what are the property rights of a partnership?
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the property rights of a partnership are: a partner has interest in the partnerships (which includes a share of the profits and losses and the right to participate in management) and a partner has a right to specific partnership property. NOTE: a partner is not the co-owner of partnership property and can't transfer his or her interest in partnership property, either voluntarily or involuntarily
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charging order
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charging order- in partnership law, an order granted by a court to a judgment creditor that entitles the creditor to attach profits or assets of a partner on dissolution of the partnership
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apparrent authority (implied authority)
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apparent/implied authority- authority that is created now by an explicit oral or written agreement but by implication
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express authority
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express authority- authority expressly given by one party to another
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what is the personal liability involved with partnerships?
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in a traditional partnership, partners are personally liable for the debts of the partnership (the liability is esentially unlimited because the acts of one partner in the ordinary course of business subject the other partners to personal liability)
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what is joint and several liability in a partnership?
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joint and several liability in a partnership means that a third party may sue all of the partners together (jointly) or one or more of the partners separately (severally) or at his or her option. this is true even if the partner didn't participate in, ratify, or know whatever it was that gave rise to the cause of the action
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what is dissociation and what are the requirements for it?
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dissociation occurs when a partner ceases to be associated in the carrying on of the partnership business. dissociation normally entitles the partner to have his or her interest purchased by the partnership, and terminates his or her authority to act for the partnership and to participate with the partners in running the business. otherwise the partnership continues to do business without dissociating the partner.
how to dissociate: give notice of "express will to withdraw", by the occurance of an event agreed to in the partnership agreement, by a unanimous vote of the other partners under certain circumstances or when it becomes unlawful to carry on partnership business with that partner, by order of a court if the partner was crappy, and by declaring bankruptcy--assigning his or her interests in the partnership for the benefit of creditors or by becoming physically or mentally incapacitated |
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what are the effects of dissociation?
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dissociation terminates some of the rights of the dissociated partner, creates a mandatory duty for the partnership and alters liabilit of both parties to third parties
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what happens to a partner's interest in the company when they dissociate?
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after a partner's dissociation, his or her interest in the partnership must be purchased. the BUYOUT price is based on the amount that would have been distributed to the partner if the partnership were wound up on the date of dissociation offset against the price are amounts owed by the partner
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wrongful dissociation
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wrongful dissociation- if dissociation is in breach or a partnership agreement is it wrongful. in the case of a partnership for a definite term or a particular undertaking can be wrongful if the partner withdwars by espress will, is expelled by a court, or declares bankruptcy
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dissolution
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dissolution- occurs when any partner (or partners) initiates proceedings to terminate the partnership or when an event specified in the partnership agreement occurs. (winding up is the process of collecting and distributing the partnership's assets. when winding up is complete, the partnership's legal existence is terminated)
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what is a notice of dissolution?
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notice of dissolution- a partner must communicate her or his intent to dissolve or to withdraw from the firm to each of the other partners. all partners will share liability for the acts of any partner who continues to conduct business for the firm without knowledge that the partnership has been dissolved
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what is an LLP?
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LLP- a hybrid form of business designed mostly for professionals who normally do business as partners in a partnership. it allows a partnership to continue as a pass-through tax entity for tax purposes but limits the personal liability
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what must LLPs do?
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LLPs must: file the appropiate form with the secretary of state's office, file annual reports with the state to remain qualified as an LLP. also, all of the statutory and common law rules governing partnerships still apply
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what two categories of enterprises are LLPs especially attractive?
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LLPs are particularly attractive for professional services and family businesses
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what kind of liability to LLPs hold?
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the liability of an LLP is:
allows professionals to avoid personal liability for the malpractice of other partners. LLP statues vary from state to state but generally each state statute limits the liability of partners in some way. |
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in an LLP who is responsible when a partner commits a wrongful act?
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when a partner commits a wrongful act they are liable for the act. also liable is the partner who supervises the party who commits a wrongful act. **in states with proportionate liability statute, a partner will be liable for no more than his or her portion of the responsibility for the "oopsies"
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what is a limited partnership (LP)?
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a limited partnership is a business organizational form that limits the liability of SOME of its owners
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what does an LP consists of?
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an LP consists of at least one general partner and one or more limited partners. a general partner assumes management responsibility for the partnership and thus has full responsibility for the partnership and thus has full responsibility for the partnership and all its debts. a limited partner contributes cash or other property and owns an interest in the firm but doesn't undertake any management responsibilities and isn't personally liable for partnership debts beyond the amount of his or her investment
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how do you form a limited partnership?
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a limited partnership is formed publically and formally and must follow statutory requirements
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what do partners of an LP need to sign?
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partners of an LP need to sign a certificate of limited partnership- which requires information similar to that found in a corporate charter. the certificate must be filed with the designated state official and is usually open to public inspection
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what are the rights and liabilities of partners in an LP?
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general partners are personally liable to the partnership's creditors; thus at least one general partner is necessary in a limited partnership so that someone has personal liability.
limited partners have essentially the same rights as general partners, including the right of access to partnership books and the right to other info regarding partnership business. on dissolution of the partnership, limited partners are entitles to a return of their contributions in accordance with the partnership certificate. a limited partner also has the right to sue an outside party on behalf of the firm if the general partners with authority to do so have refused to file suit. in addition, investor protection legislation may give some protection to limited partners. liabilities of limited partners: the liability of a limited partner is limited to the capital that she or he contributes or agrees to contribute to the partnership. a limited partnership is formed by good faith compliance with the requirements for signing and filing the certificate, even if it is incomplete or defective. |
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can limited partners be involved in LPs?
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no limited partners in LPs CANNOT participate in management. a limited partner who participates in management will be just as liable as a general partner to any creditor who transacts business with the limited partnership and believes, based on the limited partner's conduct, that the limited partner is a general partner
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what dissolves an LP?
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what dissolves an LP?
bankruptcy or the withdrawl of a general partner (however, bankruptcy of a limited partner doesn't dissolve the partnership unless it causes the bankruptc of the LP) the retirement of a general partner causes a dissolution unless the members consent to a continuation by the remaining general partners or unless this contingency is provided for in the certificate. on dissolution, creditors' rights, including those of partners who are creditors, take first priority. after that, partners and former partners receive distributions of partnership assets and, except as otherwise agreed, amounts representing returns on their contributions |
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what is ULPA?
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ULPA is the Uniform Limited Partnership Act which is a law governing limited partnerships in all states except Louisiana
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what is an LLLP?
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an LLLP is a limited liability limited partnership. it differs from an LP in that a general partner in an LLLP has the same liability as a limited partner; that is, the liability of all partners is limited to the amount of their investments in the firm
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what is an LLLP?
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LLLP (limited liability limited partnership)- a type of limitd partnership that differs from a LP in that a general partner in an LLLP has the same liability as a limited partner, that is, the liability of all partners is limited to the amount of their investments in the firm
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what is an LLC?
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LLC (limited liability company)-- owners have limited liability for the debts and actions of the LLC, they are more like a partnership, providing managment flexibility and pass-through taxation.
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what are the owners of an LLC called? and how many can be part of an LLC?
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members.
members may be individuals or corporations, or "single member LLCS" with just one person |
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how are LLCs taxed?
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LLCs are taxed like partnerships
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what is an operating agreement?
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operating agreement- the members of an LLC decide how to operate in many aspects of b usiness by forming an operating agreement
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