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by: Dr. Guadalupe Christiansen


Dr. Guadalupe Christiansen
GPA 3.74


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This 19 page Class Notes was uploaded by Dr. Guadalupe Christiansen on Saturday September 12, 2015. The Class Notes belongs to LEGL 2700 at University of Georgia taught by Wagner in Fall. Since its upload, it has received 16 views. For similar materials see /class/202180/legl-2700-university-of-georgia in Legal Studies at University of Georgia.


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Date Created: 09/12/15
Chapter 11 Intellectual Property When studying this chapter think comparatively It is a lot of facts Original authority for intellectual property Article 1 Section 8 of the Constitution quotCongress shall have the power to promote the Progress of Science and Useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveriesquot Emphasis on quotlimited times and quotwritings and discoveries 4 Types of Intellectual Property 1 Trade Secrets 2 Patents 3 Trademarks 4 Copyrights Trade Secrets Book Definition Any formula pattern machine or process of manufacturing used in one s business that may give the user an opportunity to obtain an advantage over its competitors Two requirements 0 The owner of the knowledge or information must have taken reasonable measures to keep it secret I Timex v Incase Incase showed Timex a new way of packaging watches Timex got all excited about the new idea However Incase never heard from Timex again Then they noticed that Timex began packaging their watches in the exact way that Incase showed them Incase sued Timex over trade secret misappropriation Incase lost because they neither specified with Timex that their packaging idea was a secret nor had Timex sign any form of secret acknowledgment o Misappropriation the wrongful taking of what belongs to an owner 0 The knowledge or information must have economic value from not being known publicly o It is possible for multiple companies to have the same trade secret and it does happen 0 Book example Multiple business competitors may each have customer lists that overlap with many ofthe same names As long as there are actual or potential competitors who are not aware of all the customer names the knowledge still has economic value 0 Class example If you come up with or figure out the Coca Cola recipe on your own you cannot be sued by Coca Cola Patents 0 Book Definition A specific legal monopoly in the intangible resource of copying and marketing a new invention 0 Class Definition 20 year monopoly for the use of a new invention 0 For 20 years you have control over your invention You can decide whatever you want with it After these 20 years expires then it falls into the public domain 0 You often have to make a choice over trade secret and patent Trade secret is forever but if it is easy to figure out then a patent would be more effective since no one can reproduce that for 20 years 0 Obtaining a Patent 0 Submit an application to the United States Patent and Trademark Office PTO I Application must include 0 An explanation of how to make and use the invention 0 An explanation of why the invention is different from the prior art 0 An identification of which specific aspects of the invention deserve to be patented ie the quotclaimsquot 0 Requirements for Patentability o Patentable Subject Matter I Machine I Process I Composition of matter I Improvement of any of the above 0 Improvement must be significant 0 Nonobviousness Novelty and Usefulness I Not obvious to one with ordinary skill in the art in other words it must be inventive 0 Class If it is a mechanical thing would a mechanical engineer find this inventive Nme Lan K 93mm sememmg pevmuswuesmbeu m a pubhzannn 0R m n 3 am szhemma Lompnund umme mmpnund has a usesav Hddmg pexsnf easAzmewH be unab emgexa unhw pamm on w 73mm Enforzem m 73mm mmngemen summed use are paeemeu mvermnn sesmapammmmngememamnn Nonrmmngemem a emwasnkwmus nmnwe musem and 5mm have never been gamed by 7T0 unenrmeeabmwtpaxememameubvanauu Themunzanremweapamn Tomfnngeapaxe nn xneedmmmngeaanmezamsjusone were an be mump e dawns on 393mm emu XVandZandsnmeonevm aKesZ fapammsavsm dame mama Vand manna Zand someonevm axesZJhenKHBremfauk Trademarks Bunk eermmon a smumnw ueaxeu prnpenv m a mark word meme m desng hex aHaLhesm genus and mmeaeesmensomee pmeumgmem agamswse by mhers mass uenmmn anvmarkwmd mummynewmansammeumagoeu meme 25 a Exam m Trademarkszanabnbesnunds assexamp e NBCKune 0 Types of Trademarks 0 Service mark a mark associated with a service Examples Prudential HBO Monstercom 3917 Prudential 0 Certification mark a mark used to certify the quality compliance or some other characteristic of a good or service Examples Good Housekeeping Seal of Approval energy star MG 0 Collective mark a mark used to represent membership in an organization Example National Football League logo 1 1 k 0 Trade Dress colors designs or shapes associated with a certain product or service Example the red color scheme of CocaCola when associated with the general design of CocaCola labeling r J Trademark Registration 0 Mark must first be used in interstate commerce 0 Register with PTO 0 Mark must be distinctive Can39t be same or similar mark on related goods Reeboc on a shoe instead of Reebok isn39t distinctive I Can t contain certain prohibited or reserved names or designs 0 You can t trademark the American flag names of persons without their consent etc I Can t be merely descriptive 0 You can t trademark restaurant or fast food 0 You can trademark Apple for computer but not Apple for actual apples I Can t be people s names 0 Usually not considered worthy of a trademark unless it has a secondary meaning 0 Secondary meaning Walt Disney isn t a name now it is an entertainment company 0 Trademark signs I regIstered trademark I TM applied for trademark o Trademark Enforcement 0 Civil enforcement Infringement I Infringement an unintentional or a willful unauthorized use misappropriating the goodwill and reputation that the trademark represents and confusing the public about the identity of the user I Defenses o The mark is not distinctive o If a trademark becomes generic it loses its distinctiveness and also loses its status as a protected trademark I Generic Terms that once were not generic Aspirin Refrigerator Escalator Zipper I At risk Kleenex Band aid iPod Xerox Google 0 A court can declare a mark invalid even if the PTO accepted registration 0 No chance of confusion by public 0 Book example Public is not likely confused between the Ford automobile and the Ford Modeling Agency 0 Fair use Exception allowing use oftrademark for criticism comment news reporting teaching scholarship or research 0 Book example You can legally advertise the results of a study that show your product to be superior to a competitor s even if you mention the competitor s trademarked product by name 0 Criminal enforcement counterfeit I Counterfeiting those who manufacture or traffic in counterfeit trademarked products products such as imitation quotRolexquot watches or Levi jeans 0 What makes counterfeiting criminal is the deliberate intent to pass off fake products as real by attaching an unauthorized trademark o Trademark Dilution I Prevents use of a similar trademark to dilute the significance reputation or goodwill associated with the more famous trademark Class and Book example There was a retail store named quotVictor s Secret that sold a variety of quotintimate lingerie and quotadult noveltiesquot The respondent who owns the quotVictoria s Secret trademark demanded that the owners change the store s name or cease operation claiming that the name quotVictor s Secret was likely to cause confusion with the trademark quotVictoria s Secret and also was likely to quotdilute the distinctiveness of that mark The store name was changed to quotVictor s Little Secretquot but quotVictoria s Secret still sued The owners of quotVictor s Little Secret won because their new name does not dilute quotVictoria s Secretquot Copyright 0 Copyright protects expression 0 Covers artistic works music film paintings etc o Holder controls reproduction display performance and distribution of the copyrighted work 0 Lifetime 0 Individual Individual s lifetime 70 years 0 Corporation book is wrong 95 years from publication or 120 years from date of creation whichever expires first 0 Requirements 0 Must be original 0 Must be fixed in a tangible medium I Tangible medium there must be a recording ofa song or a video of choreography etc 0 Must show creativity I Not creative facts alphabetic arrangement for a phone book Chapter 4 Litigation I Litigation Bringing andor defending an action in court to enforce a particular right 0 Most cases are not fully litigated especially civil cases Only 5 civil cases actually go to jury verdict because of the time cost attorney fees I Parties to a Litigation 0 Plaintiff The party initiating the lawsuit 0 Defendant The party being sued 0 Caption PIainti W Defendant 0 You can sue multiple defendants And if you have multiple lawsuits the court will combine all of them 0 3rd party defendants EX P v mechanic 9 brake suppliers 0 Counterclaims A different claim brought by the defendant against the plaintiff 0 Claim tort negligence in a car accident 0 Car accident P39s fault IT does not have to flow from the claim It can be something totally different 0 Appeals name changes at the court of appeals 1 Appellant The party challenging the lower court ruling 2 Appellee The party that was successful in trial court 0 Caption Appellant V Appellee 0 Supreme Court again the name changes 1 Petitioner The party challenging the lower court ruling 2 Respondent The party that prevailed in the court of appeals 0 Caption Petitioner V Respondent 0 Class Action 0 A lawsuit in which one or more plaintiffs file suit on both their own behalf and on behalf of all others who may have a similar claim 0 Benefits 1 Efficiency 2 Increase relevancyimportance 3 Individual claims not viable individually may be viable collectively EX Walmart 15mil women sued for gender discrimination You can opt out of class 0 Draw back 1 Attorney Contingency fee basis lfthey don t win attorney does not get anything And if they do win heshe gets 13 ofthe award This motivates attorneys to file lawsuits I Requirements for Bringing Suit 1 Standing to Sue a The plaintiff must show that it has a legally protectable stake or interest in the dispute entitling it to bring the controversy before the court in order to obtain judicial relief b Two requirements for standing i Actual case or controversy justiciable controversy ii Personal stake in the resolution ofthe case 2 Personal urisdiction a The power of a court to hear and determine a lawsuit involving the parties before it b Courts automatically obtain personal jurisdiction over a plaintiff when he or she files suit 0 The court has the authority over the parties It is always about the defendant 3 Courts obtain personal jurisdiction over a defendant through any ofthe following means i The defendant voluntarily appears ii The defendant is served with process in the state iii The defendant is served with process outside the state and a The defendant committed a tort in the state b The defendant owns property in the state that is the subject matter ofthe suit or c The defendant entered a contract or transacted business in the state that is the subject matter of the suit 4 Subject Matter jurisdiction a The power ofa court to hear and determine lawsuits involving the issues of the type before it I Pretrial Procedures 1 Pleadings o The formal presentation of claims and defenses by parties to a lawsuit i Complaint Filed by the plaintiff initiating a lawsuit ii Answer Filed by the defendant admitting or denying each allegation 1 May also include any counterclaims iii Reply The plaintiff39s response to defendant s counterclaims if any 2 Pleadings Defendant39s Options Defendant s Responsive Pleadings 0 Answer General and Specific denials O Counterclaims o Affirmative defense 0 yeah I did it but I was insane self defence Motion to dismiss I No response Default Judgment for P 3 Discovery The procedure by which each party obtains the information needed to prepare its case 0 Most cases die or settle at this point 9 C7 lnterrogatories Written questions which must be answered by the other party i Identify any individual that you are aware has personal knowledge of the facts and circumstances of this case including all eyewitnesses to the accident ii List all insurance agreements you have regarding the vehicle operated by Defendant at the time of the collision with the Plaintiff Requests for Production of Documents Written requests for certain categories of documents in the possession of other party You can ask for anything that is likely to lead to admissible evidence Even if it is deemed inadmissible at the trial i All maintenance records concerning the vehicle being driven by the Plaintiff on the date of the accident for the two 2 years prior to the auto accident ii All notes bills photographs Xrays or other documents prepared or reviewed by any doctor performing a medical examination on the Plaintiff for the six 6 months following the auto accident c Depositions Oral questioning by an attorney of a witness who must answer under oath 0 Its pretrail and you ask question to potential witnesses Its usually done in attorney39s office Usually in videos d Requests for Admission Written questions asking the other party to specifically admit or deny a certain fact seeking a response that is simply admit or deny i Admit that you were driving a 2000 Toyota with Maryland motor vehicle tags on the date of the car crash ii Admit that the light was red when you crashed into Plaintiff39s car 4 Scope of Discovery a Requested discovery must be likely to lead to admissible evidence 5 Motions a Typically written requests made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant b Motion to dismiss common motion at trail No subject matter jurisdiction no personal jurisdiction no standing I Trial 1 ury Selection 0 Voir Dire The preliminary examination of prospective jurors to determine their qualifications and suitability to serve on the jury o Helps ensure the selection of fair and impartial jury 0 Both sides have to agree on 12 jury Attorneys do that together 11 ury Selection 0 Challenges 0 For cause unlimited bias 0 Peremptory 410 no cause A Opening Statement not argumentative B Presentation of Evidence plaintiff goes first C Closing Statements argumentative Dury Instructions judge instructs the jury E Verdict Ill Burden of Proof 0 The level of proof necessary to prevail at trial 0 Criminal cases Beyond a reasonable doubt 0 Civil cases Preponderance of the evidence or clear and convincing proof I Appeals 0 Parties submit written briefs explaining their legal position 0 The court of appeals will then typically schedule an oral argument I Order of Litigation A Pleadings B Pretrial Motions Chapter 7 The PropertyBased Legal System Property Law quotThe hallmark of a protected property interest is the right to exclude othersquot The Supreme Court Property is the legal right to exclude others from resources that are originally possessed or are acquired without force theft or fraud Property indicates legal 39 39 that quot 39 is I U 39 39 by law as being mine or u yours It indicates exclusiveness The United States operates under a private property system Private Property protects private persons and allows them to exclude others including in most instances the state from interfering with their resources You can do most anything with your property but there are some restrictions Some restrictions include You can t break the law with your property Zoning restrictions mminent domain where the government comes in and takes your property Private property is easy to transfer and sell without government intervention Benefits of a Private Property System 1 It increases the availability of resources 2 It is generally associated with a more free and democratic government 3 It promotes incentive a With private property people have an incentive to work for they get to keep and benefit from what they produce 4 It generates capital formation a Capital formation is producing new or different resources A house equity into cash b Most common with loans c Class Example 2004 buy home for 400000 Go to Bank 1 for the 400000 loan the house is the loan collateral In 2005 you owe 390000 The value of the house is now 450000 The increase of the value the amount you paid off your equity Equity 60000 However you can t really access this 60000 You can do a home equity loan with another bank Go to Bank 2 home equity loan of 60000 Now you tanginy have the 60000 If you were to foreclose with a house value at 450000 Bank 1 gets paid first 390000 Bank 2 who foreclosed gets the rest 60000 If you were to foreclose with a value of 250000 while still owing 350000 Bank 1 you would still owe 100000 Bank 2 owe 50000 These banks can seek a defiance judgment and can sue you to pay This forces you into bankruptcy 5 It increases prosperity by making resources easy to sell and divide Why capitalism fails everywhere but the west This is most likely due to a non secure system of property law The laws in these countries do not adequately guarantee property in these resources and affordable collateral secured loans are unavailable The lack of an adequate property law system may not account totally for poverty in less developed countries but it is arguably the most important contributing factor There are 2 types of Property 0 Real property Ownership and interest in land I Includes fixtures Things that become real property by association with actual real property I Think molding spindles things that won t leave a house when the owner does become real property 0 Personal property All other types of moveable resources I Tangible personal property things you can touch such as clothes cars and food I Intangible personal property stocks copyrights and patents Methods of Acquiring Property 0 Acquisition through exchange 0 Most popular think bartering 0 Acquisition through possessions 0 Rule of First Possession I First person to possess an unowned item becomes the owner I Class example meteorite crashed into rental property at the feet ofthe tenant Tenant not landlord owns it for the tenant was the first to own the property 0 Abandonment I If an item is abandoned the first to possess it afterwards then owns it I Class example baseball story after baseball was hit it was abandoned 0 Lost Property I The finder of a lost item becomes its owner after following statutory procedure ofthe state and waiting a set time period I Mislaid Property If an item is on a table of some sort it is mislaid not lost The rightful owner of the property then belongs to the owner of the land on which the item was mislaid not the finder o Adverse Possession I Obtaining ownership of land only belonging to another through continuous possession I Requirements 0 Open and notorious owner could see it 0 Actual and exclusive must be using it 0 Continuous Must not lapse in time of using it o Wrongful can t have permission 0 Last for the prescribed period oftime 20 years in Georgia 0 Acquisition through Accession o Accession addition I Whoever owns the original property owns the addition ofthat property I Book example Suppose a thief steals someone s plane engine and builds a plane around the engine Then if the thief were to be caught the airplane would go to the original engine owner 0 Acquisition through Gift 0 Terminology I Donor The person giving the gift I Donee The person receiving the gift I Testamentary gift A gift made through a will 0 This is the 2nd most common acquisition of property o 2 kinds of gifts I Intervivos Gift while the donor is alive I Testamentary gift donor receives property in will 0 No will It is then called check recording o It is a valid gift if there is intent to give the gift and delivery of the gift 0 Giftdelivery can be actual or constructive I Actual the item itself class example Car I Constructive not the tangible item class example Keys title Types of Ownership 0 Fee Simple o 2 types these names usually found in wills I Fee simple absolute You receive the gift and have complete control with no conditions 0 Class example Grandpa conveys farm to A A can keep it a farm make it a mail etc I Fee simple defeasible You receive the gift with conditions and risk losing the gift if breaking the conditions 0 Class example Grandpa conveys farm to Aso long as land used for agricultural purposes 0 If condition is breached the farm goes back to grandpa If grandpa is dead it goes to his heirs The act ofthe property going to his heirs is known as an automatic reverter o If A then gives the land to B the fee defeasible stays intact This can go on be passed down for 100 years and the owners are still liable Ifthey ever breach it the heirs can take it back The heirs are the monitors 0 Life Estate 0 Grants ownership of property for lifetime of a specified person 0 Class Example Dad conveys property to Mom for her life I If it just says this this it goes to Dad s heirs after her life 0 This typically doesn t happen Usually it says then to the kids 0 Why this Why not Dad s will to Mom and Mom s will to kids I Taxes Both are fee simple absolute You pay more taxes with fee simple absolute than you do with life estate 0 Life estate purautre vie is offor another life I Class example quotTo Bob for the life of LeBron Jamesquot LeBron James doesn39t own anything he is a measuring stick Leasehold Estate 0 The properb right granted to tenants by a landlord 0 You don39t really own it you39re leasing it 0 Cannot do anything that substantially reducesthe value of the land Title and Property Registration 0 E A document serving as evidence of ownership of property 0 Unbroken chain oftitle A gives land to B B gt C C gt D D gt E E gt me Does quotEquot really own this land If there is a break A gt B B gt C D gt E E gt me then quotEquot may not really own the land and if the person who owned it at the break C said it was his landthat owner C would win the dispute Deed A document of title transferring ownership ofthe land 0 Warrang Deed promises the grantee that the grantor has good ownership and the full power to convey it I Always demand this Wpe of deed It means they fully own the property they are selling you 0 Special Warrang Deed specifies that certain legal claims against the land like mortgages exist but guarantees that no other claims exist 0 Quitclaim Deed makes no guarantees other than that the grantor surrenders all claim against the land I This is the deed of no promises and should be avoided Special Applications of Properw Easement reserves a particular use of land 0 This is a right to cross over someone else39s land Utiliw companies usually have an easement of 6 feet on your land so they can put in pipelines cables etc 0 o Affirmative Easement Parcel One I In this picture Parcel 1 has reserved an Easement to have an access road through Parcel 2 s land 0 Negative Easement Snyder has full legal right to build something However Smith can get a negative easement that Snyder will not obstruct Smith s view Usually Snyder is paid since his lot loses value with a negative easement and it will sell for less 0 Class example Think solar panels fthey re on your house and your neighbor plants huge trees he is fully allowed to do that You can get an easement with him to not plant those trees Bailment the temporary transfer of one possession of personal property from one person to another 0 Bailor Owner of the property o Llee Person with whom the property is left 0 Bailments fall into 3 categories I Bailor benefit for the sole benefit ofthe Bailor 0 Class example someone watches your dog and does NOT get paid 0 Bailee owes slight degree of care towards property I Bailee benefit for the sole benefit ofthe Bailee 0 Class example you borrow someone s car solely for your own benefit 0 Bailee owes high degree of care towards property I Mutual benefit for the mutual benefit of both parties 0 Class example dry cleaning business Both parties gain from service 0 Bailee dry cleaners owes reasonable care towards the property 0 Book example You go to a hotel remove your expensive leather coat and hang it on a hanger in a small room provided by the hotelThe coat turns up missing Is the hotel responsible as the bailee The answer depends on whether or not the hotel has taken intentional possession of the coat Since they merely provided a coat hanger the hotel is not taking intentional possession of the coat But ifa hotel employee hangs up the coat for you the hotel becomes a bailee 0 When a bailee uses an object in a way not authorized or prohibited by the bailor the bailee becomes absolutely liable as an insurer for anything that happens to it Limitations on Property and the Common Good 0 Nuisance A use of property that interferes with the legal rights of others by causing damage annoyance or inconvenience 0 Public Nuisance Causes inconvenience or damage to the public 0 Private Nuisance Causes inconvenience or damage to another citizen 0 Class Examples I Dog barking covered by nuisance law I Dog on property not nuisance law trespassing law I Odors nuisance law I Christmas lights nuisance law this one has to be pretty bad 0 Key for nuisance law person is on their own property and they do something to annoy their neighbor 0 Factors courts use to decide I Frequency I Intent I Severity I Utility of the behavior 0 Class example a dog food factory may make smells but it also employs many people and it significantly helps the city s economy I Zoning 0 Class example You can t move to Times Square and complain about the noise Typically if you move to the nuisance no remedy Book example Spur Industries had a big feed lot for cattle A developer Webb begins building a big neighborhood next to the cattle feed lot Webb sues Spur Industries for the smell and flies asking for the court to order Spur Industries to move Since so many people were effected


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