Letcure 9

Question 1

Discharge

Answer 1

The parties to a contract can end a contract/modify it by agreement, even if it’s not been fully executed

Question 2

What are the two ways discharge happens

Answer 2

Rescission = the parties agree to terminate the contract without full performance.

Novation = this discharges one of the original parties to the contract, in favor or a new
contract with a third party.

Question 3

Accord & satisfaction:

Answer 3

if a contract isn’t fulfilled as originally promised, the details may be changed and the contract
still discharged

Question 4

If someone in a contract dies or a law makes it illegal what is it called

Answer 4

Discharge by impossibility. Subject matter is destroyed

Question 5

Breach of contract and remedies

Answer 5

This occurs when one party cannot/does not perform, in which case a LAWSUIT may be filed;
the plaintiff may then CANCEL the contract with no liability

Question 6

Compensation and damages

Answer 6

. Defaulting party usually required to pay DAMAGES:

This typically means:
(1) costs incurred by the breach
(2) lost profits –
(3) Equitable relief – specific performance -may be necessary if money is not. The
Judge tells you to “Give Tod the Miro he bought from you”.
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(4) Punitive damages are not allowed in breach of contract cases, unless there is a
secondary claim for a serious TORT, like Fraud, that corrupted the contract.
(5) ATTORNEY FEES generally not awarded for breach of contract, but contacrt can make it so these are paid

Question 7

Liquidation damage clause

Answer 7

. Some contracts will contain a clause that sets the damages, in
case of breach, ahead of time.

ex:I agree to build you a house, that will be done by Dec. 1. In the contract we agree, now, that
for every day I am late, I owe you $200.

Question 8

Duty to mitigate

Answer 8

Even when you are wronged, you have a duty to act reasonably to minimize your damages.

Question 9

Quasi Contracts

Answer 9

Quasi-contract is an equitable doctrine (the court is trying to do the FAIR THING whereby a
court may award monetary damages to a plaintiff for providing work or services even though
no actual contract existed.

Question 10

What are the 2 types of property

Answer 10

(1) Real Property = things like land, buildings and “tangible” things you can hold (like your
laptop).

(2) Intellectual Property = things created by mental or creative processes (that you cannot
really hold, like the idea of what the Coca-Cola logo looks like)

Question 11

If you unlawfully use, steal another person’s intellectual property, you
are

Answer 11

infringing

Question 12

Trademarks

Answer 12

These are distinctive marks, words, designs, pictures, or arrangements to allow consumers to identify and link the product with the producer.

The mark allows consumers to readily identify the origins of the product.

Question 13

What is the two part test used to determine a trademark can be preposed

Answer 13

(1) what is the likely meaning of the mark or words;
(2) if that meaning refers to an identifiable group, is the meaning disparaging to a substantial composite of that group?

Question 14

How long are registered trademarks valid for?

Answer 14

10 years, but if the owner continues to use and protect the trademark, and pay a small annual registration fee, it’s valid forever.

Question 15

Federal Trademark Dilution Act

Answer 15

hen another business does something that
dilutes (lessons) the value of a similar trademark.
The Dilution Act created a Federal cause-of-action for violation of the statute -
(1) regardless of whether the products competed with each other and eliminated the requirement that “confusion” be demonstrated.
(3) But (the Supreme Court has held) there still must be some evidence that the infringing
mark lessons the value of the famous mark, e.g. “dilution”
(4) injunctive relief (the court can tell the other party “stop doing this”) is allowed.

Question 16

Order of how much reach TM is protected

Answer 16

1. Arbitrary and Fanciful trademarks are the strongest; they are invented words
2. Suggestive – Dairy Queen (implies great ice cream!) / are given some protection.
3. Descriptive. Not favored by courts; plaintiff must show that the term has acquired customer recognition to obtain protection.

D. Generic. Not protected. Any company can use “Kleenex” to describe their
products.

Question 17

Things courts consider in A TM dispute

Answer 17

1. The degree of similarity between the two marks (the key is whether or not the
   similarity will cause confusion among the public).
2. Proximity of Products (are they in the same market? Compete for the same
   customers?)
3. Bridging the gap. Is there evidence the senior user intends, or might later, enter into
   the same business?
4. Evidence of actual confusion.
5. Junior user’s good faith and goodwill (has the junior user acted properly?)
6. Quality of junior user’s product (the lower the quality, the greater the potential
   damage to the senior user, is the minds of the public that purchase form the junior
   user.)
7. Sophistication of consumers (are they smart enough to tell the difference?).

Question 18

Trade dress

Answer 18

A distinctive feature distinguishes a good of another. (Appearance , color, texture, shape, size)

Question 19

There are two basic requirements that must be met for trade dress law protection.

Answer 19

(1) the protectable features must be capable of functioning as a source indicator, or secondary meaning —identifying a particular product and
its maker to consumers. In the United States, package design and building facades can be considered inherently distinctive.
(2) Under the “functionality doctrine”, trade dress must also be nonfunctional in order to be protected. If the element is functional, protection should be sought under patent law.
Functional = what people are buying / why people are buying it.

Question 20

Trade Secrets

Answer 20

A process, product, method of operation, formula, process, technique, pricing structure, customer list, inventions, or compilation of information used in business that isnt known to the public and that may bestow a competitive advantage on the
business.

Question 21

Trade secrets are very different from patents, copyrights and trademarks, because

Answer 21

All the other ones require u discolse your info in the application process

Question 22

Trade secrets remain valid only as long as

Answer 22

no one else discovers the information
independently; the information has not been lawfully made public; nor discovered by
working backwards from the original product/process, or publicly observing the
product/process.

Question 23

to Sue the other party for trade secret

Answer 23

a plaintiff must prove that:
1. A trade secret actually exists; and
2. The defendant acquired it through unlawful means; and
3. The defendant used it without the plaintiff’s permission

Question 24

Patents Protect:

Answer 24

1) novel + (2) useful + (3) non-obvious products, processes, inventions,
machines, or asexually reproducing plants.

Question 25

How long are patents good for?

Answer 25

20 years

Question 26

things that cannot be patented include

Answer 26

(1) the laws of nature;
(2) natural phenomenon; (3) abstract ideas.

Question 27

Copyright

Answer 27

he exclusive legal right to reproduce, publish, and sell the fixed form of
expression or an original creative idea.

Question 28

To register sue over a copyright

Answer 28

1. The idea must be fixed set out in a tangible medium or expression;
2. It must be original;
3. It must be creative;
4. It should carry the appropriate notice, e.g. © (this will
   increase your award because the other party cannot claim “I didn’t know it was
   copyrighted.”)
5. And it must be registered (with the Register of Copyright) in order to sue.

Question 29

If you hold a copyright you have:

Answer 29

The right to reproduce it
Publish and distribute it
Display it
Perform it
Prepare derivative works based upon it

Question 30

Fair Use doctrine

Answer 30

provides that portions of a copyrighted work may be reproduced for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use),
scholarship and research.

Question 31

What are the parts of a valid contract

Answer 31

1. Capacity (“Competent Parties”)
2. Offer + Acceptance
   (Also called “Mutual Agreement”)
3. Genuine Assent (also called “Consent”)
4. Consideration
5. In form prescribed by law
   (#5 and #6 are often combined.)
6. Legal formation and execution

Question 32

CAPACITY

Answer 32

must not be a minor, drunk, mentally incompetent

Question 33

Offer + Acceptance

Answer 33

The parties must come to a mutual agreement by OFFER and ACCEPTANCE (they must agree
to THE SAME THING

Question 34

Offers must include

Answer 34

1. Identification of the parties;
2. Identification of the subject matter and quantity;
3. Consideration to be paid (See below);
4. Time of performance
5. Price (though this is sometimes unclear; lawyers services)