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74 Cards in this Set
- Front
- Back
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Intellectual Property Law
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balance the rights of those who create intellectual property and those who would enjoy it
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Patents
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grant by the government permitting the inventor exclusive use of an invention for 20 years (tangible application only)
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Utility Patent
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The actual invention for use
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Design Patent
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protects the appearance of an item, not the function (only lasts for 14 years)
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Plant Patent
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anyone who creates a new type of plant, provided it can reproduce asexually
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Requirements for Patents
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novel, nonobvious, useful
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Copyrights
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holder owns the particular tangible expression of an idea, but not the underlying idea or method of operation; valid for 70 years after the death of maker; copyrighted once in tangible form
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Fair Use
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permits limited use of copyrighted material without permission of the author for purposes like criticism, comment, news reporting, scholarship, or research
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Trademarks
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any combination of words and symbols that a business uses to identify its products or services and distinguish them from others; affixed to goods in interstate commerce
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Service Mark
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used to identify services, not products
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Certification Marks
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products and services must be certain standards
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Collective Marks
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identify members of an organization
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Fanciful Marks
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made up words
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Arbitrary Marks
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existing words that don't describe the product
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Suggestive Marks
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indirectly describe the product's function
Ex. greyhound |
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Secondary Meaning
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can't by themselves be trademarked unless they have been used so long they are now associated with the product in the public's mind
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Trade Dress
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image and overall appearance of a business or product
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Infringement of Trademark
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must show the defendant's trademark would deceive customers; if you're registered federally you get superior protection and attorney fees
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Trade Secrets
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formula, device, process, method, or compilation of information that, when used in business, gives the owner an advantage over competitors who don't know it
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Agency
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fiduciary relationship which results from the consent of one person (principal) to another (agent) that the other shall act on the 1st person's behalf for their benefit and subject to their control
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Elements of an Agency
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Mutual consent
Control Fiduciary Duty |
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Duty of Loyalty
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act solely for the benefit of the principal
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Duty of Care
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act as an ordinary person would, but if one holds special skills, they will be held to higher standards
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Principal's Liability for Contracts
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1. Authority
2. Estoppel 3. Ratification |
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Express Authority
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words or conduct make agent believe they have it
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Implied Authority
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in order to complete something you must do something else
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Apparent Authority
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3rd party believes the agent is authorized
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Estoppel
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others thought it, and it was never corrected
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Ratification
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agent indicated she's acting for the principal, the principal knows all the material facts, he accepts the benefits of the whole transaction, not part; 3rd party not bound if the contract states he's only bound to the agent or the agent lies about the principal
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Agent's Liability for Contracts
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fully disclosed, partially disclosed, or undisclosed
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Fully Disclosed
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existence and identity are known (NOT LIABLE)
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Partially Disclosed
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existence but not identity (MAY BE LIABLE)
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Undisclosed
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3rd party can recover from either the principal or the agent (DOESN'T KNOW EXISTENCE)
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Principal's Liability for Torts
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respondeat superior and scope of employment, intentional torts
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Respondeat Superior
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principal is liable for the physical harm caused by the negligent conduct of employees within the scope of employment
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Scope of Employment
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part of employee's responsibilities, during work hours, part of the principal's business, similar to ones authorized by the principal, principal supplied the tools, not seriously criminal
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Intentional Torts
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NOT liable unless the employee was motivated to serve the employer or the conduct was forseeable
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Agent's Liability for Torts
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ALWAYS responsible for own torts
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Employment at Will
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when there is no contract, the employer and employee are free to terminate the employment relationship for any, or no, reason
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Wrongful Discharge
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prevents an employer from firing an employee for a bad reason that violates public policy
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Statutes provided by the Federal and State Governments are intended to:
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1. provide employment security
2. promote safety in the workplace 3. provide financial security 4. protect from workplace injuries 5. promote fair treatment and employment discrimination 6. protect whistleblowers |
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4 Things to Think About When Picking an Entity
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1. Favorable tax status
2. Financing 3. Liability Issues 4. Continuity and Ease of Operation |
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Sole Proprietorship
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own all assets and profits, taxes go to personal tax return, but also have complete liability
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Partnership
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easy to organize, receive all income, tax goes on personal tax turn, but have unlimited liability and limited life of the business
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General Partnership
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2 or more unincorporated association of 2 or more co-owners
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Limited Partnership
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A business organization with one or more general partners, who manage the business and assume legal debts and obligations, and one or more limited partners, who are liable only to the extent of their investments
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Joint Ventures
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general partnership organized for a specific period of time or specific project - like movies
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Corporations
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shareholders have limited liability, can raise funds through selling stock and life of business in unlimited, but it's very expensive and has higher taxes
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Limited Liability Companies
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features of corporation and tax efficiencies and flexibility of a partnership
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C-Corporation
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Double Taxation
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S-Corporation
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pass through entity - LLC and tax status of a partnership
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Officers
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make day-to-day decisions
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Shareholders
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Want high stock price, right now
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Stakeholders
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employees, customers, creditors, suppliers, etc.
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Business Judgement Rule
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courts allow mangers great leeway in carrying out this responsibility; permits directors to do their job, keeps judges out of corporate management, encourages directors to serve
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Rights of Shareholders
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1. right to information
2. right to vote - proxies (a person who represents another person), shareholder proposals 3. right to dissent 4. right to protection from other shareholders 5. right to monitor |
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Sarbenes-Oxley
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-all members of board's audit committee must be independent
-CEO and CFO must certify the company's financial statements are accurate -company can restate earnings, but they must reimburse the company for any bonus or profits they received from selling company stock within a year of the release of the flawed materials -financial statements must disclose all off-balance sheet transactions -non personal company loans directors or officer -requires a code of ethics for senior financial officers -board established to develop stricter accounting standards and oversee the auditors of public companies |
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Securities Act of 1933
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regulate sales of new securities; "full disclosure" - required registration
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Securities Act of 1934
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Exchange Act - continually disclose information; created the SEC ->Enabling legislation
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Federal and State Securities Law
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Blue Sky Laws - exempt under federal, but not state laws
Ex. National Exchange - publicly traded |
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1936 Trend
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Limit Litigation
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Section 4(2)
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transactions by an issuer not involving any public offering are exempt
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Regulation D
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Rule 504 - 2 options 1. up to $1 mill. 2. restricted unless sold to accredited investors
Rule 505 - $5 million Rule 506 - no limit |
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Regulation A
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issues can sell $5 million of securities publicly in any 12 month period
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Public Offerings
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lots of capital from lots of people
Must be HONEST |
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Underwriting
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Firm - underwriter buys stock from issuer and resells it to the public
Best efforts - underwriter acts as a company's agent in selling it |
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Registration Statement
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1. notify SEC that sale of securities is pending
2. disclose information to prospective purchasers |
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Prospectus
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all important disclosures about the company
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Rule 10(b) 5
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gives rise to the tort of fraud and insider trading
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Insider Trading
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ILLEGAL
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Strangers
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inside trader who is only liable if she had fiduciary duty to the company
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Possession vs. Use
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most commit in advance to sell securities
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Takeovers
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prohibits trading during a tender offer
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Other insider trading terms
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tippers, tippees, fiduciaries, misappropriation
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