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LEGL Exam 3 > LEGL Exam 3 > Flashcards

LEGL Exam 3 Flashcards

(79 cards)

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1
Q

Trade Secrets

A

information must be secret and business must take reasonable measures to keep it secret

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2
Q

Utility Patent

A

Function of invention, term is 20 years from filing date

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3
Q

Design Patent

A

Appearance of invention, term is 15 years from issue date.

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4
Q

Plant Patent

A

20 years from filing date

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5
Q

America Invents Act

A

first-to-file-system

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6
Q

Subject Matter than CAN be patented

A
  1. Process
  2. Machine
  3. Article of Manufacture or
  4. Composition of Matter
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7
Q

Subject matter that Can’t be Patented

A
  1. Laws of Nature
  2. Natural phenomena
  3. Abstract Idea
  4. Mathematical algorithms or formulas
    Just because Granted a patent, you can still be charged against it.
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8
Q

Characteristics of Patents

A

Novelty: something new and different from prior art

Nonobviousness: Ability of invention to produce surprising or unexpected results

Utility: Must do something useful, put yourself in shoes of other experts in field

Must have all three

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9
Q

Trademarks

A

-Recognizability or distinctiveness
-Protects customers against Confusion
-can have one but could be easily taken away from you.
-is there likelihood of confusion between you and mine

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10
Q

Trademark

A

mark, word, picture or design that attaches to goods to indicate their source

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11
Q

Service Mark

A

associated with a service

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12
Q

Certification Mark

A

mark used by someone other than the owner to certify the quality of goods or service

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13
Q

Collective Mark

A

Mark represents membership in a certain organization or association

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14
Q

Trade Dress

A

look or design of a product or service. Ex: color shape of a product. Focused on likelihood of confusion.

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15
Q

Difference in Design Patent and Trade Dress

A

Design limited timeline, Trade Dress is unlimited

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16
Q

When can the PTO deny Registration?

A

-Same or similar to another mark
-If it contains prohibited or reserved names
-merely describes a product or service
-generic (everyone says Taco Tuesday, person doesn’t have trademark anymore) and represents a product or service.

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17
Q

Unregistered Trademark

A

Derived from use not registration

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18
Q

Registered Trademark

A

Have rights in all 50 states and all US territories

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19
Q

Can you register Descriptive Terms or a Person’s name as a Trademark?

A

-PTO will not accept a person’s name or descriptive term for protection on the Principal Register

-Exception: If descriptive term is listed for 5 years AND acquires a secondary meaning

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20
Q

Trademark Infringement

A

must prove that Defendant’s use has created a “likelihood of confusion” with plaintiff’s trademark

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21
Q

Federal Trademark Dilution Act

A

Prohibits usage of mark that is similar to another “famous” trademark

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22
Q

Types of Dilution

A

Blurring: usage of mark blurs distinctiveness

Tarnishment: usage of mark creates negative impression about the famous company
Ex: Ben and Jerrys; adults film company named “Ben and Cherry’s”

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23
Q

Copyrights

A
  1. Work must be original
  2. Must be fixed in a tangible medium of expression; not just an idea
  3. Must show creative expression
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24
Q

Individual Copyright

A

Individuals lifetime plus 70 years

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25
Company Copyright
95 years from publication or 120 years from creation-whichever one expires first
26
Can you get copyright on forecourt close sequence and international copy rights?
-Can't get copyright on forecourt close sequence and international copy rights
27
Fair use Defense
fair use of copyrighted materials include: 1. Criticism 2. Comment 3. News reporting 4. Teaching 5. Scholarship 6. Research
28
Master and Composition
Composition: generally song lyrics Master: recorded song
29
Elements of a crime
Mens Rea: guilty mind Actus Reus: Actual physical act of crime, voluntary AND person has to be conscious to commit crime BOTH have to be present
30
Felony
-Grand Jury Indictment -Fine or imprisonment less than 1 year
31
Misdemeanor
-the government files a charge called an information -Fine or imprisonment less than one year
32
Please
-Guilty -non Guilty -Nolo Contendere
33
Nolo Contendere
-Allows for sentencing as if there had been a guilty plea -Allows you to avoid the cost of trial
34
White Collar Crime
-Any illegal offense that occurs in a business or professional setting that harms the business.
35
Civil and Criminal Fraud
Civil= Have to have reliance Criminal=Don't care if person relied or not
36
Wire Fraud
Unlawful use to any electronic means of communication (radio, tv, phone call, text message) to defraud someone
37
Health Care fraud
Prosecution of false claims under the False Claims Act
38
Examples of Health care fraud
-Uncoding or billing for a more costly procedure than the one actually performed -Unbundling or billing each stage of a procedure as if it were a separate procedure
39
Counterfeiting
-no communication (bank cards, plates, account numbers) -use of unauthorized access device -Must result in at least 1,000 being fraudulently obtained within a 1 year period.
40
Concealment
-intentional misrepresentation -Doesn't matter whether successful in concealment, can still be held accountable
41
Conspiracy
-Requires an overt act: Any act knowingly committed by at least one of the conspirators in an effort to carry out or accomplish some objective of the conspiracy.
42
Obstruction of justice
-intent to obstruct or interfere with the legislative or judicial process Ex: company being investigated and you get rid of emails and tell people to delete emails.
43
False Statement to Bank
-relates to material fact and is untrue -known to be untrue by the person making it
44
Larceny
Theft or stealing (shoplifting)
45
Robbery
Larceny by violence or threat
46
Burglary
Breaking in with intent to commit a felony
47
Embezzlement
Entrusted another person with access to money, and that person breaks trust by writing checks to themselves/others.
48
RICO
-person engages in a pattern of racketeering activity -must have engaged in at least 2 racketeering activities
49
Cyber Crime
Hackers steal money
50
Endangering workers
Must have adequate safety precautions in place
51
Bribery
-bribery of a public official is illegal
52
Kickbacks
-bribery where payments made to a person who facilitated a transaction.
53
Fourth Amendment
-protects individuals and corporations from unreasonable searches and seizures
54
Private Residence
Higher expectation of privacy
55
Commercial premises
Lower expectation of privacy. Easier to search without having a warrant
56
Exceptions to searches and seizures
Consent searches: present yourself at a checkpoint at an airport, they are allowed to search you. Exigent Circumstances: allow officers to do a search without a warrant if they believe you are getting rid of evidence or threat to public) Bonus: cannot go through phone unless dealing with Exigent Circumstances
57
Grand Jury Proceedings
they are confidential (Grant Jury not deciding guilt or innocence, looking at probable cause. -if we act like we don't remember, pull transcripts
58
self incrimination
Does not protect a person who is required to produce business records
59
Miranda Rights
Mere silence doesn't invoke your Miranda Rights: you have to clearly articulate that you are invoking your Miranda rights
60
Double Jeopardy
-Individuals can't be tried twice by the same government entity for the same crime -Can bring a civil and criminal case. Double Jeopardy doesn't apply to civil penalties, limited to criminal cases.
61
Actual Authority
Express (Written, spoken, or derived from the circumstances) Ex: Told employee to get apple, Call grocery store
62
Implied Authority
Authority that is incidental to express authority. Ex: Owner out of town, you as manager notice short on coffee. So go to grocery store and charge credit card to get coffee
63
Apparent Authority
Authority perceived by a third party when no actual authority exist. Ex: Fired employee, they are mad so they charge up company credit card. Would be on hook if you didn't call to tell them.
64
Tort Liability
TEST: whether the employee was in the scope of his/her employment when the tort occurred. If you were driving delivery truck to drop off package. Frolic and detour i. Used as a defense by employers.
65
Sole Proprietorships
Pros: least expensive, not taxed, total control Cons: Proprietorship is tied directly to the will of the owner.
66
Partnership
Agreement between 2 or more persons (not just individuals but can be corporations
67
General Partnerships Pros
1. creation can be automatic 2. cost not significant 3. Taxed at partner level only 4. Equal voice in management 5. may operate in more than one state without obtaining a license 6. subject to less regulation and less government supervision
67
General Partnerships Cons
1. Limited number of partners 2. Dissolves whenever a partner ceases to be a partner (withdrawal, death). 3. Equal Voice, leads to deadlocks 4. Personal liability and joint and several liability 5. taxed on their share of partnership profits
68
Dissolution
legal form no longer exists as we currently know it
69
What happens if not certificate in limited partnership?
Limited partners treated as General Partners
70
Corporations Pros
-perpetual existence -death or sale of stock doesn't affect organizational structure -limited personal liability -large number of owners -can be owners and employees -divided into many unequal shares
71
Corporations Cons
-more costly -created by a state issuing a charter -must be licensed/qualified -Double taxation -lack of direct control -subject to more government regulation
72
Corporate Managerial Control
1. Shareholders 2. Board of directors 3. Officers
73
Non-profit Corp
Pay your employees
74
Limited Liability
Pros: non taxable, more flexibility, membership not limited to individuals. cons: Articles of Organization
75
Corporation vs LLC
Corporation: files articles of incorporation LLC: file articles of organization.
76
Domestic, Foreign and Alien
Domestic: incorporated within state Foreign: Incorporated in any other state Alien: created under authority of a foreign country.
77
Misappropriation
-not if I make it at home
78
patent expires?
-hits public domain -Default: extend it if you made some improvement

LEGL Exam 3 (2 decks)

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