A distinctive mark, motto, device, or emblem; the owner has the exclusive rights to use. To protect manufacturers from losing business to rival companies that used confusingly similar trademarks..competing or not competing but "related" goods/services

Ex. Coke

Dilution:protects "distinctive" or "famous" tM from certain unauthorized uses even when noncompeting or unlikely to confuse. Use of similar mark provided that it reduces the value of famous mark. Ex: "Sambucks"

Not ex: "Victor's Little Secret" 

Infringement: the owner must show that the defendant's use of the mark created a likelihood of confusion about the origin of the defendant's goods/services. Remedy for infringement is an injunction, can recover actual damages. A court can also order the destruction of any goods bearing unauthorized tm.

A tm must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily n to distinguish bt those goods and competitors.

Strong Marks:fanciful, arbitrary, or suggestive tm strongest bc they taken from outside the context of the particular product n thus provide the best means of distinguishing 1product from another. 

Fanciful tm EX: "xerox" or "kodak." Arbitrary EX: "Dutch Boy" (can of paint). Suggestive EX: "Dairy Queen. 

Secondary Meaning: when customers begin to associate a specific term or phrase. "London Fog" (jackets) **Even a color can qualify for trademark protection. Once secondary meaning is attached to a term or name, tm considered distinctive and so is protected. EX: "SExy Little Things"(V.S.)

will not be protected under tm law even if the term has acquired a secondary meaning

EX: bicycle, computer, aspirin, raisin bran, corn flakes, "You have Mail"

A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Ex: Good housekeeping Seal of Approval" and UL Tested"

A mark used by members of a cooperative, association, union, or other organization to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Ex: appears at the ends of the credits of movies to indicate the various associations and organizations that participated in making the movie.

The image and overall appearance of a product--for example: the distinctive decor, menu, layout, and style of service of a particular restaurant. Ex: the G shaped design of a Gucci watch.

**trade dress is subject to the same protection as tm

A term that is used to indicate part or all of a business's name and that is directly related to the business's reputation and goodwill. Trade names are protected under the common law(and under tm law if the name is the same as that of the firm's tm'ed product)

Ex: Coca-Cola

***unless also used as a tm or service mark, a trade name cannot be reg w the fed gov't.

A gov't grant that gives an inventor the exclusive right or privilege to make, use, or sell his invention for limited time..the applicant must demonstrate that the invention, discovery, process, or design is novel and useful. 20yrs- then product enters public domain where others can make, sell, or use the invention.

Almost anything is patentable except..1) the law of nature. 2) natural phenomenon. 3) abstract ideas

ideas! anything that is not an original expression, facts widely known to the public, page numbers, math calculations

**However, Compilations of Facts-ARE copyrightable. assembling of preexisting materials of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Ex..yellow pages, but not white pages

whenever the form or expression of an idea is copied. Does not have to be exactly the same as the original, nor does it have to reproduce the original in it entirety. 

Liable for damages or criminal penalties. Actual damages- based on the harm caused to the copyright holder. Statutory damages- not to exceed $150k are provided for under Copyright Act. Criminal proceeding- fines and/or imprisionment

an exception to liability to copyright infringement.. a person or organization can reproduce copyrighted material w/o paying royalties 

1)purpose and character to the use, including whether such use s a commercial nature or is for nonprofit education purposes

2)nature of copyrighted work

3)amount and substantiality of the portion used in relation to the copyrighted work as a whole

4)the effect of the use upon the potential market for or value of the copyrighted work.

**Legit if does not affect market for sale, not in competition

the four requirements that must be et for a valid contract to exist...

1.Agreement:an offer and an acceptance 

2.Consideration:something of value received or promised to convince a person to make a deal

3.Contractual Capacity:the law must recognize both parties as possessing characteristics that qualify them as competent parties.

4.Legality:the contracts purpose must be to accomplish some goal that is legal and not against public policy. 

a type of contract that arises when a promise is given in exchange for a return promise. "A promise for a promise."  

**Not legally enforced. No performance, such as payment of funds or delivery of goods, takes place

EX: Javier offer's to buy Ann's camera for $200 and states he will give her the $ on fri when he gets paid. Ann accepts his offer.

EX: Professor promises to meet Williams for golf lessons for $50 tomorrow morning

A contract that results when an offer can be accepted only by the offeree's performance. "Promise for an act." The contract is formed when the contract is performed. Do the act-->get paid.

EX: Reese offers to Celia, "if you drive my car from NY to LA, I'll get you $1000." Only on Celia's completion of the act, does she fully accept Reese's offer to pay $1000.

EX: contests, lotteries, &other competitions offering prizes.

***offers are normally revocable (capable of being taken back or cancelled) upon until accepted.

A contract that by law requires a specific form for it validity. 

EX: negotiable instruments:checks, drafts, promissory notes, and certificates of deposits. Under UCC, special forms and language are required to create them. 

EX: Letter of credit used in international sales contracts

a contract which the terms of agreement are stated in words, oral, or written; words exchanged

EX: a signed lease for an apt or house; if a classmate accepts your offer to sell your textbooks from last semester for $300, an express oral contract has been made.

a contract formed in a whole or in part from the conduct of the parties; words not stated.

Req'd:

1.the plaintiff furnished some service/property

2.the plaintiff expected to be paid for that service/property and the defendant knew or should have known that payment was expected(by using the obj theory of contracts)

3.the defendant had a chance to reject the services or property and did not

EX: You talk w an accountant ab getting your taxes done.the next day after a consultation you drop of reqd items to secretary w/o expressing you accept the payment and fees reqd. 

**Routine forms contract..you work at mall and always get the same thing to eat. Guy is flooded one day and you grab the usuAL and knods to cashier/owner. 

Contract Enforceability

1.Enforceable contract: a valid contract that can be enforced bc there are no legal defenses aga it

2.Voidable contract: A valid contract but one that can be legally avoided at the option of one or both parties. The party having the option can elect either to avoid any duty to perform or to ratify the contract. If avoided, both parties are released from it, if ratified, both must fully perform their respective legal obligations. 

Minor can participate.

EX: minor buys car w/ college$. Dad returns car for $.

EX: contracts entered into under duress or undue influences are voidable

3.Unenforceable contract: a valid contract rendered unenforceable by some statute or law. 

EX: some writings must be in writing, if not, they will not be enforceable.

NO CONTRACT. None of the parties have any legal obligations if void.

EX:if one of the parties was previously determined by the court to be legally insane(thus lacking legal capacity) or bc the purpose of the contract was illegal.

Illegal/unlawful. knocked out from C & L.

AGREEMENT~ 

A meeting of two or more minds in regard to the terms of a contract, usually broken down into two events: an offer and an acceptance.

Requirements of an offer:

to do or refrain from doing some specific act in the future

1.Revocation:the withdrawal of an offer by an offeror; it can be revoked at any time prior to acceptance w/o liability--but expressed reputation or performance of acts are inconsistent 

**Termination by action of the offeree** >>2.Rejection:the offer may be rejected by the offeree, typ accomplished by words or conduct evidencing an intent not to accept

3.Counteroffer:an offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.

1.Lapse of time

2.Destruction of the specific subject matter

3.Death or incompetence of the offeror or the offeree

4.Supervening illegality of the proposed contract

An option contract is created when an offeror promises to hold an offer open for a specific period of time in return for a payment (consideration) given by the offeree. Limit offeror's ability to revoke offer for a specified amn't of time. EX: New Line want to buy the script you wrote. Pays $25k to hold for 6mos. If contract never made, you can sell to someone else and keep money.

When the offeree justifiably relies on an offer to her or his detriment, the court may hold that this detrimental reliance make the offer irrevocable. EX: Angela rents commercial property from Jake, the rental property market is more favorable for tenants than for landlords. Angela may look to rent else where after lease is up but jake promises when this time comes he will reduce her rent. Angela relies on his promise.

a voluntary act by the offeree that shows assent, or agreement, to the terms of an offer, words/conduct. The offeree must accept unequivocally..The mirror image rule!

Communication necessary in bilateral contract because a promise for a promise req the offeree to admit. H/e in a unilateral, promise for an act is evident with the completion of the act.

the value given in return for a promise. The consideration must be something of legally sufficient value and there must be a bargain-for-exchange

Legal value:a promise to do something the one has no prior legal duties. 2. the performance of an action that one is otherwise not obligated to untertake; 3. the refraining from an action that one has legal right to undertake

Bargin for Exchange:the promise given by promisor must induce the promisee to offer a return promise, a performance, or a forbearance, and the promisee's promise must induce the promiser to make the promise. 

**A gift doesn't make req for a consideration. EX: someone is offered $for graduation top 10% of class.

-preexisting duty: a promise to do what one already has a legal duty to do. an officer cannot collect a reward for providing info leading to the capture of criminal. EX: a contractor states another 75k must be added to contract or no finish job. The land owner pays bcuz doesn't see anyone else will finish it. Bache is obligated under preexisting contract to complete the building.

Past Consideration:promises made in return for actions or events that have already taken place are unenforceable. These promises lack consideration in that the element of bargained for exchange is missing. Past consideration is no consideration. EX:Iverson gives hs buddy the nickname of "The Answer"

Promissory Estoppel

justifiable reliance on a promise.

1. Must be a clear and definite promise

2.Promisee must justifiably rely on the promise

3.the reliance normally must be of a substantial and definite character.

4.justice will be better served by enforcement of the promise

**if these req are met, a promise may be enforced even though it is not supported by consideration. The promisor estopped from asserting lack of consideration as a defense. EX: Uncle says he pay $300/wk so u not have to work. You quit your job but your uncle refuses to pay you.

Contractual Capacity

the legal ability to enter into a contractual relationship

MINOR: voidable

certain contracts are not enforceable bc of the negative impact they would have on society, such act that are considered immoral such as selling a child/prohibit marriage.

EX:Forest gives man $10k not to marry his daughter, however man can marry woman and keep money bc the contract is void.

Covenant not to compete

(restrictive covenant)

a contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specific geographic area. Courts commonly enforce such covenants if they are reasonable in terms of time and geographic area and are part of, or supplemental to, a contract for the sale of a business.

**After termination at one co, cannot go to a competitor to work until a reasonable amn't of time has passed.

characterizes those contracts, or portions of contracts, that are oppressive or overly harsh. Courts focus on provisions that deprive one party of the benefits of the agreement or leave that party w/o a remedy for nonperformance by the other.

EX: credit card agreement, insurance companies, cell phone companies

Mistakes of fact v mistakes of value/quality. Only a mistake of fact may allow a contract to be avoided.

EX: An old violin was sold for $250. Buyer took to an antique shop where it was valued at $25k. The seller is out of luck bc the contract remains enforceable. 

EX2: Same seller sells a violin for $15k but in actuality, it is only worth $250..mutual mistakes of facts, court supports recission of contract.(Bi)

Bilateral (Mutual) Mistakes of Fact

occurs when both parties are mistaken as to some material fact- that is a fact important t the subject matter of the contract. The contract can be rescinded/canceled (rescission).

EX:Keeley buys a painting from Umberto's art gallery, which whom both believe is a landscape by VanGogh. Keeley later discovers that the painting is a very clever fake. Bc neithe Umberto nor Keeley was aware of this material fact when they made their deal, Keeley can rescind the contract and recover the purchase price of the painting. 

occurs when only one of the contracting parties makes a mistake as to some material fact, does not afford the mistaken party any right to relief from the contract. 

EX: DeVinck intend to sell his motor home for 32,500. When he learns Benson is interested he sends him a fax and mistakenly keys in the price of 23,500. Benson immediately sends a fax back accepting..DeVinck is bound in contract to sell for 23,500.

**Two exceptions:

1.if the other party to the contract knows or should have known that a mistake of fact was made, the original price, the contract may not be enforceable.

2.when the mistake of fact was due to a mathematical mistake in + - / or x, and was w/o extreme negligence. 

Fraudulent misrepresentation

misrepresentation that is consciously false and is intended to mislead another. Fraud affects the genuineness of the innocent party's consent to the contract; thus, the contract was not voluntary in the sense of involving "mutual assent" The innocent party can either rescind the contract and be restored or enforce contract and seek damages for an injury.

1. A misrep of material fact must occur

2. there must be an intent to deceive, called scienter

3.the innocent party must justifiably rely on the misrep.

if a person makes a statement that he or she believes to be true but that actually misrepresents material fact, innocent misrep has occurred, not fraud. The aggrieved party can rescind the contract but not receive damages. 

EX: Paris tells Roberta that a tract of land contains 250 acres. Paris is mistaken-the tract is 215 acres but Paris does not know this. 

one party can greatly influ another party, thus overcoming that party's free will which then lacks voluntary assent. The party being taken advantage of does not  exercise free will in entering into a contract. 

EX: Minor or elderly under influ of guardian, attorney-client, physician-patient

consent to the terms of a contract is not voluntary is one of the parties is forced into an agreement, through fear created by threats. Threatening to exercise a legal right such as to sue someone does not constitute duress. 

EX: Car accident, Olin say if you don't pay me $3000 im going to sue you for $35000. Joan pay then later stops payment. Court orders duress is not an argument that can relieve her.

a state statute under which types of contracts must be in writing to be enforceable. 

1. contracts involving interests in land

2.contracts that cannot by their terms be performed w/in one yr from the day after the sate of formation

3. collateral, or secondary contracts such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personality-out of his/her own pocket

4.promises made in consideration or marriage (prenuptial agreements)

5.contracts for the sale of goods priced at $500 or more.

A third party, one who is not a direct party to a particular contract, normally does not have rights under that contract.Exceptions:

1.Assignments

2.Delegations

3.Third party beneficiary

Discharge

Performance

the termination of an obligation. in contract law, discharge occurs when the parties have fully performed their contractual obligations or when events, conduct of the parties, or operation of law releases the parties from performance.

In contract Law, the fulfillment of one's duties arising under a contract with another; the normal way of discharging one's contractual obligations

**duty to perform under contract may be conditioned on the occurrence or nonoccurence of a certain event, or the duty may be absolute.

in most contracts, promises of performance are not expressly conditioned or qualified. Instead the are absolute promises. They must be performed or the parties promising the acts will be in breach of contract. 

Condition:a qualification, provision, or clause in a contractual agreement, the occurrence or nonoccurrence or which creates, suspends, or terminates the obligations of the contracting parties. EX: Afonso offers to buy JoAnne's painting only if an independent appraisal indicates that it is worth $10k. JoAnne accepts the offer and their contract is conditioned on the outcome.

when the sub matter of the contract is personal, a contract performance to the satisfaction of one of the parties is conditioned and performance must actually satisfy that party. Ex.portraits, works of art, and tailoring.

Most other contract need to be performed only to the satisfaction of a reasonable person unless they expressly state otherwise.

mutual rescission-an agreement bt the parties to mutually cancel contract.the parties must make another agreement that also satisfies legal req of a contract; An offer, acceptance, &consideration 

Novation-when both of the parties to a contract agree to substitute a third party for one of the orig parties

1.a previous valid obligation

2.an agreement by all the parties to a new contract

3.the extinguishing of the old obligation (discharge of the prior party)

4.A new contract that is valid

Substitutional agreement-the two orig parties to the contract form a difft agreement to substitute for the orig one.(Arises over disputes over obligations)

Accord and Satisfaction

accord-is a contract to perform some act to satisfy an existing contractual duty. The agreement to accept the auto in lieu of $8k in case is the accord.

satisfaction-the performance of the accord agreement

Alteration of the Contract-the law operates to allow an innocent party to be discharged when the other party has materially altered a written contract w/o consent.

Statutes of Limitations-restricts the period during which a party can sue on a particular cause of action

Bankruptcy-

Impossibility/Impracticability of Performance-a party to a contract is relieved of his duty to perform when performance becomes objectively impossible or totally impractical.

4 Types of Impossibility of Performance

1.Objective Impossibility of Perf-

-when one of the parties to a personal contract dies or becomes incapacitated prior to performance. EX: Ballet, fred dies

-when the specific matter of the contract is destroyed EX: a truck veer off the road and destroys a tractor Victor was supposed to have ready for pick up for customer to buy.

-when a change in law renders performance illegal

2.Temporary Impossibility-an occurance or event that makes performance temporarily impossible, operates to suspend performance until the impossibility ceased to exist. Ex: hurricane katrina damages house $60k when it is to be sold for $241K. Owner must make repairs and go forth w contract

3. Commercial impracticability- a court may excuse the parties from performing a contract when the performance becomes much more difficult or costly due to an event that the parties did not foresee or anticipate at the time the contract was made.

4.Frustration of purpose-supervening circumstances make it impossible to attain the purpose both parties had in mind when making the contract. objective performance no longer exists.

1. Compensatory(to cover direct losses and costs)

2. Consequential(to cover indirect and foreseeable losses)

3. Punitive(to punish and deter wrongdoing)

4. Nominal(to recognize wrongdoing when no monetary loss is shown)

Liquidated:are enforceable

Penalty: not enforceable; an amnt stipulated to be paid in the amnt of a default or breach of contract. when the amn't is not a reasonable measure of damages, the court will not enforce it but will limit recovery to actual damages. Excessive amn't meant to penalize breaching party.

1.When the contract was entered into, was it apparent that damages would be difficult to estimate in the event of a breach?

2.Was the amn't set as damages a reasonable estimate and not excessive?

*if both yes, enforced. if one no, not enforced.

Restitution-a person is restored to his orig position prior to loss or injury, or placed in the position he would have been in had the breach not occurred. 

Specific Performance-req exactly the performance that was specified in contract; usu granted only when money damages would b an inadequate remedy and the sub matter of the contract is unique

EX: sale of land

EX: contracts for personal service-one party works personally for another party.

a fictional contract imposed on parties by a court in the interests of fairness n justice; usu imposed to avoid the unjust enrichment of one party at the expense of another

1.the party conferred a benefit on the other party

2.the party conferred the benefit with the reasonable expectation of being paid

3.the party did not act as a volunteer in conferring the benefit

4.The party receiving the benefit would be unjustly enriched by retaining the benefit without paying for it

Exculpatory Clause- provision stating that no damages can be recovered

Limitation of Liability- provisions that affect the availability of certain remedies. Excludes fraud, intentional injury, illegal acts or violations of law

Sales Contract- a contract for the goods under which the ownership of goods is transferred from a seller to a buyer for a price. "The passing of a title from the seller to the buyer for a price"

-Goods must be moveable and tangible

a firm offer arises when a merchant gives assurances in a signed writing that the offer will remain open. A firm offer is irrevocable w/o the necessity of consideration for a stated period of time.

EX: Under contract law, 25k had to be paid w/ the consideration to buy film to hold spot for a certain time period. H/e under the UCC Osaka, a used car dealer writes a letter to Saucedo on Jan 1 stating"I have a 05Suzuki on the lot that i'll sell you for 8500 any time bt now and jan31. This writing creates a firm offer and Osaka will be liable for breach if he sells to someone else during that time period

The UCC permits acceptance of an offer to buy goods "either by a prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods." Conforming good accord w the contracts terms. Nonconforming do not. The shipment of nonconforming goods constitutes both and acceptance which creates a contract and a breach of that contract. 

EX: If you buy A and receive B, shipment and receive of B constitutes an acceptance/breach. He, if you are notified before hand that B is only an accommodation bc they dont have A and you accept, sits as a counteroffer and not breach.

if the acceptance inclu terms addit to or diff from those contained in the offer n one or both of the parties is a nonmerchant the contract form according to the terms of original offer submitted. In contracts bt merchants the additional terms w automatically become part of the contract unless

1.the orig offer expressly limited acceptance to its terms

2.the new or changed terms materially alter the contract

3.the offeror objects to the new or changed terms w/n a reasonable period of time.

Sale contracts for goods priced at $500 or more and lease contracts requiring total payments of $1000 or more must be in writing to be enforceable. 

Exceptions: Specially Manufactured goods, Admissions(gas), Partial performance(chairs)

A seller or lessor is req to deliver goods that conform perfectly to the requirements of the contract in every detail.

**Compare to Mirror Image Rule.

1.Payment: buyer must make payment at time and place the buyer or lessee receives the goods. The credit period begins the day of shipment

2.Acceptance: 

1. The right of Cover: a buyers purchase on the open market of goods to substitute for those promised but never delivered by the seller. Under UCC, if the cost of cover exceeds the cost of the contract goods, the buyer can recover the diff plus incidental and consequential damages. buyer must act in good faith wo unreasonable delay

2.Right to obtain specific performance: when goods are unique or when the remedy at law is inadequate. 

3.Right to recover damages

4.The Right to reject the goods

5.revocation of Acceptance

6.Mitigate

a warranty that goods being sold or leased for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sales or lease of goods made by a merchant who deals in goods of the kind sold or leased; imposes liability for the safe performance of he product. 

"Reasonably fit for the ordinary purposes for which goods are used."

EX: snow skis, implied that it was made/bought for purpose of snow skiing.

A warranty that goods/services are sold for a particular purpose. Those warranted arises when any seller knows the particular purpose for which a buyer will use the goods and knows that the buyer is relying on the skill and judgement of the seller to select suitable goods. 

E-Contract

Click on Agreement

A contract that is formed electronically.

an agreement that arises when a buyer, engaging in a transaction on a computer, indicates his assent to be bound by the terms of an offer by clicking on a button that says "I agree"

If you are educating..can read..have eye sight.. you're gonna be presumed to have read it. If you click, you're binded and stuck.