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Commonly Used Symbols of Law

December 11th, 2014 | Posted by admin in Uncategorized - (0 Comments)

D Defendant

P Plaintiff

K Contract

Ste. Statute (law)

Reg. Regulation

 

Facts

Facts include the following types of issues:

Did the D drive through a red light?

Was he under the influence of alcohol at the time?

Did the D intend to harm the victim?

What did the parties mean in their CONTRACT?

Law

Law includes the following types of issues:

What does driving under the influence signify legally?

If the D intended to harm the P, does that mean he is guilty?

Did the police use illegal procedures?

Once a verdict or decision is reached at the trial court, the parties may, in some cases, appeal to an appellate court.

Appellate jurisdiction involves the court’s power to review questions of law as they occurred at the trial court. If there were errors more than de minimis (insignificant), the verdict may be reversed, a new trial ordered, et cetera.

Venue

Then, there’s venue.

Once jurisdiction is established a trial may be moved within that jurisdiction for the convenience of the parties or in order to assure a fair trial. This involves the principle of venue, which means the place of the trial.

A change of venue means that a trial is moved for one of the above reasons.

Administrative law

And finally, remember that many disputes aren’t handled initially in any court! They are heard by administrative agencies, which derive their jurisdiction from specific statutes. Officials called hearing examiners, hearing officers, or administrative law judges…hear them. For example, the Nuclear Regulatory Commission (NRC) hears cases dealing with nuclear power plants, the Federal Communications Commission (FCC) hears cases dealing with television and radio stations, licenses for them, et cetera. Social Security benefit cases are heard by the Social Security Administration (SSA). And so it goes! Remember: Always be in the right place!

Standard of proof

In order to prevail (win) in court, a party has to prove its case. PROOF IS THE NAME OF THE GAME – THE ONLY GAME IN COURT.

The party that brings the case to court usually has the burden of proof at first. In criminal cases this burden is always on the government. The defendant (D) is presumed to be innocent until proven guilty. It�s the government’s burden to prove him guilty. The D has to neither prove nor disprove anything.

In civil suits the plaintiff (P) has generally the first burden to present a prima facie case, which includes enough evidence that could prevail if not rebutted by the D.

What does a side need to prove its case to win? As you may have guessed by now – it depends on the case!

Beyond ALL doubt is not required in any trial.

Beyond a reasonable doubt is the degree to which the prosecution/government must prove its case to get a guilty verdict in a criminal case. The jury or judge (the trier of facts) must be fully satisfied with the evidence. In a jury trial there must be a unanimous verdict; all jurors must vote to convict.

Motion to dismiss may be granted by a judge when he rules (decides) that the P or prosecution has failed to meet its burden of presenting a prima facie case. This means that, even if everything it sought to prove is proven, it would still lose. The facts may not be determinative. The law is against the P or prosecution.

By a preponderance of the evidence is the degree to which either party must prove its case to win a civil suit. It means that one side’s evidence has greater weight than the other does. A unanimous jury vote is generally not required. Each jurisdiction has its own standards for a necessary majority.

Note: There are cases when the government cannot convict a D but a P in the civil suit on the same matter may win – because of the lower civil standard. Remember the OJ Simpson trials.

In a criminal case, remember that the D may have an affirmative defense. This shifts the burden to the D to prove that even if he committed a criminal act, he had a valid defense, a reason, a “license, to do the act.�

Time and its legal consequences

Time is money. You can’t sit on your rights forever. He who hesitates is lost. These truisms are also very important legal concepts.

Sometimes the mere passages of time will win-or-lose your case!

Two important legal concepts are based on time: The statute of limitations and retroactivity.

Statute of limitations

This time concept marches forward into the future from an event. It is a time limit on how long a person has for bringing a lawsuit or being prosecuted for a crime. Purpose: to eliminate “stale” cases. A plaintiff (P) shouldn’t be rewarded for laziness or procrastination and “sitting on his rights.” A defendant (D) shouldn’t have to worry forever about being sued or prosecuted. Thus, if the time has passed, a P can lose before he ever begins his case! And, of course, a D can use the statute of limitations defense to move for a dismissal of the case. A motion to dismiss asks the court to, throw the P’s case out because it is too late; it is time barred.

Specific statutes of limitations exist in various areas of the law. Each state/case/situation is different and must be checked carefully in current statutes.

Tolling: The start of the time period; the event that triggers the beginning of counting days/weeks/months/ years for the specific statute of limitations.

Note: If the P is a minor, the time does not begin to toll until he reaches the age of majority in the state in which he lives. Of course, if a guardian ad litem brings a lawsuit on his behalf, that may be done before he reaches the age of majority. Examples of specific statutes of limitations include:

Torts: Statutes of limitations generally range from one to six years. The interesting and unsettled issue is whether the starting time (beginning of tolling) is the time of injury or the time P first becomes aware of the injury (which could be far later). For example, in a products liability case, does the time begin to toll from the time the product was sold, the P used it first, or when a latent disease or condition (caused, P believes, by the product) was first discovered?

You can be sure that lawyers, judges, P’s, and D’s (often large companies) have debated these issues long and hard.

Very little time is given for tort claims due to government negligence (where the government is the D). For example, a mail truck hits you. These have a very short statute of limitations period. It’s a matter of weeks or months!

Why is this so? Because, historically, the government had immunity from being sued. It did not permit itself to be sued. This immunity is being eroded by new laws and court decisions, but the government still sets a very short period of time in which it can be sued.

Contracts: Varies from state to state. Time generally starts tolling when the K is executed.

Criminal cases: Varies from state to state, crime to crime. There are no statute of limitations for homicides (murders, manslaughter, et cetera). That’s why you read of cases prosecuted many, many years after the homicide!

Federal (not state) law, according to the Constitution governs the following areas. Thus these periods are definite and uniform throughout the U.S.

Patents: Six years to sue for unauthorized use (infringement) of your patent.

Copyright: Three years to sue for copyright infringement.

Federal income tax: Three years for the IRS (Internal Revenue Service) to come after you for more taxes after the filing date or after you filed if you filed late. Thus, if you don’t file your tax return, the time does not begin to toll, and the IRS can come after you without any statute of limitations! There are longer statutes of limitations for specific tax matters, omissions, et cetera. You have to check the IRC (Internal Revenue Code). Remember though, if there is fraud, no statute of limitation applies. The government’s time to find you is limitless.

Finally, here is a concept from equity:

Laches: While no specific laws are involved, this concept prevents stale claims. Thus, even if there is no specific statute of limitations, one could use the laches defense to prevent the suit from going forward. This concept is used especially in property cases, where it’s called the “Doctrine of Stale Demands.” So, in law as in the kitchen, don’t let things get stale!

Retroactivity

Retroactivity, unlike statute of limitations, goes backward in time. Yes, a legal time machine!

In civil cases this concept is properly called “retrospectively�. In criminal cases it’s ex post facto laws. These are banned in our Constitution. In both cases it concerns a law that relates to events or decisions in the past. In doing that, it gives the earlier event a different legal effect than it had at the time it occurred.

For example, let’s say a new state law requires couples applying for marriage licenses to take a blood test for HIV/AIDS. Such a law probably may not be applied retrospectively (retroactively) to married couples, as they had no expectation of such a requirement when they applied for licenses and have a vested interest in not taking it now and jeopardizing their valid license.

Generally, retroactive/retrospective laws are unconstitutional if they interfere with rights, which were vested under earlier laws. That would be a “taking” without due process.

Ex post facto laws are unconstitutional. (See the Constitution, Article 1, Section 9.) Ex post facto means “after the fact.” Such a law would make an act criminal (or more severe) that was innocent (or less severe) when it occurred earlier.

Why are these laws unconstitutional (not allowed)? Simply stated, because they would be unfair. People can be prosecuted only for laws that are knowable to them. The government cannot change the rules in midstream and hold people who relied on earlier laws responsible for later ones. A D must be tried under the laws which existed when the crime was committed.

However, if a later law gives new or different rights, it may be given full retroactive effect.

Nunc pro tunc is another concept that goes backward in time. It means “now for then.” It’s a way to correct the record or a document in the past to make it be as it was supposed to be . . . and not as it actually was. Confusing? For example, if your marriage license was defective for some reason, you can by a nunc pro tunc order, alter the license to reflect the way it was supposed to be. No, a defect in the license is not a quick and easy way to get a divorce or annulment!

When What Is In Your Heart and Mind Does Matter
States of Mind That Have Legal Meanings and Importance

Many cases depend on a person’s mental state of being. Did the person intend to do what he did?

How important is this? Extremely important. Think about it. They say even a dog knows if he has been kicked. Little children know to say, “But it was only an accident.” “I didn’t mean to take your bike/book/cookie.”

Thus, from dogs to children, we all know that a person’s state of mind is vital in assessing an event. Let’s see how it plays out in specific situations in both criminal and civil law.

In criminal law, the term mens rea deals with the importance of a state of mind. It means a guilty mind, guilty intent. It encompasses many of the terms described below, including intent, knowledge, malice, gross (criminal) negligence, and recklessness, among others.

Generally, a crime is the combination of a mens rea and the actus reus (the criminal act).

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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As the costs (in time, money and effort) of going to court rise and the courts are often backlogged, several ways to settle legal disputes without going to court have emerged. They are called alternative dispute resolution (ADR) models. Alternative to what? (A) To litigation: the judicial (court) contest that decides and enforces legal rights. (B) To the adversary system: another name for litigation.

Generally, people use ADR because it is less time consuming, less expensive, and less stressful than litigation. ADR currently exists in several forms: negotiation, arbitration, conciliation, mediation, and pretrial hearings.

  1. Negotiation: Occurs when the parties try to settle their dispute themselves. Just as between parents and children, husbands and wives or neighbors and colleagues, it is a possible avenue for resolving disputes that involve legal rights and responsibilities.
  2. Conciliation: Occurs in court before trial, when the parties meet to try to settle their differences. If they do so, they are said to, “reach a settlement agreement.” Also used in labor disputes before the arbitration as a final effort to settle the case.
  3. Pretrial hearing or conference: Occurs when the parties meet before the trial begins to attempt to settle their dispute or narrow the issues between them or agree on certain facts (“stipulations”), to simplify the trial. This meeting usually occurs with the judge or administrative hearing officer who will hear the case if it doesn’t settle.
  4. Mediation: Occurs when the disputing parties try to settle their differences by having a neutral third person, a mediator, help them. The mediator may be a stranger or friend or someone hired by the parties through a mediation service. The mediator
    • hears both sides,
    • listens to each side privately (in what is called a “caucus”),
    • brings the parties together,
    • helps them see their areas of agreement as well as disagreement, so they may settle their dispute.

    Mediation may be used often in divorce cases and in relatively minor criminal matters, as when neighbors argue about unruly children or dogs, or in assault and battery situations among family members or schoolmates. People who know each other and need to get along in the future often use it. A court may order the parties to attempt mediation. Mediation is used in business settings, as well as disputes about special education.

    Note: The mediator does not decide the case for the disputants. He acts as a facilitator. If the parties reach an agreement, the mediator helps them to write it down. It is called a “settlement,” or “mediated agreements,” or “settlement at mediation,” or-well, you get the idea! One could always mediate to decide what to call the agreement!

  5. Arbitration: Occurs when, as in mediation, the parties use a neutral third person, an arbitrator. However, the arbitrator’s role is quite different from that of a mediator. The arbitrator is chosen by both parties from a list of persons provided by government or private agencies. He hears the evidence from both sides in a setting that is somewhat like a court, but less formal and usually takes less time than a full trial. Then the arbitrator makes the decision for the parties, specifying their rights and responsibilities.Note: This is very different from the mediator, who does not decide the parties’ legal rights and responsibilities, but only facilitates their agreements. Arbitration is often incorporated into
    • labor contracts,
    • business contracts,
    • consumer laws such as automobile “lemon laws,”
    • and contracts between parties. For example, in fee disputes between lawyers and their clients! “If we can’t agree on a fee, we’ll take this matter to binding arbitration.”

    The arbitrator’s decision is almost always binding. That is, the parties agree that this will be “binding arbitration,” and they will live with the decision and not to appeal it (except on rare occasions).

    In other cases, as when a judge orders parties to arbitration instead of pursuing their lawsuit, the arbitrator’s decision may not be binding. (Remember: people cannot be deprived of their day in court, i.e., and their due process rights!)

As you can see, even with Alternative Dispute Resolution there are several alternatives.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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When you are dealing with the law, you may be called a—-ee, an—-ant, or an —-or!

Which is which when?

Here are some common categories of people as they appear in legal situations.

1. Bailor and bailee

The bailor delivers property to a bailee to hold and return later to the bailee.

When I park my car in your garage and leave you the keys, I am the bailor; you are the bailee. The car is the bailment.

If I don’t leave the key, then I am the lessee and you are the lessor: I simply rent space from you.

Who cares, you say! You do, if something happens to my car and I’m looking for someone to sue! It may be easier to sue a bailee than a lessor.

Other everyday bailments: leaving valuables at the hotel desk; taking clothes to the cleaners; taking your car to the garage for a tune-up. (Remember that if the mechanic does the job, he now has a lien on your car that ends when you pay for the work. If you don’t pay, guess who may own part of the car!)

2. Creditor and debtor and (sometimes) surety

The debtor owes an obligation (often money) to the creditor. A surety guarantees the debtor’s debt through a suretyship arrangement.

“promise to pay Dee’s debt if he fails to do it”.

Here are some of the many everyday creditor/debtor relations.

  • A. Mortgagor (homebuyer, debtor) owes money to the mortgagee (often a bank, creditor).
  • B. Borrower (debtor) owes money to the lender (creditor-often a bank).
  • C. Obligor owes an obligation to the obligee.
  • D. Promisor owes a promise to the promisee.

3. Donor and donee

The donor gives a gift to the donee. Nice and easy.

4. Drawer, drawee, and payee

In writing a check the drawer writes an order to the drawee (often the bank) to pay money to the payee.

5. Employer, employee, and independent contractor

The employer hires the employee to work. Other terms for employer include boss, owner, and master. Other terms for employee include worker, servant.

The terms master and servant, as used here, have specific legal meanings. A master employs someone and directs how the work is done, as well as the finished product. You own a painting company and hire painters. You instruct them in how to paint what process to use what materials to buy, et cetera.

A different relation exists between an employer and an independent contractor. In this case the employer directs the finished product only.

“I want my house painted red.” I don’t tell you how to paint it. I pay when the house is painted.

Who cares? Again, you do, when it’s time to pay employee taxes, sue for a job poorly done, or deal with a work-related injury, among other things.

In law so much depends on how you characterize someone! We move on….

6. Garnishee, debtor, and creditor

Sometimes, in enforcing an order against a debtor, a court may use the process of garnishment. The court orders the garnishee (often, the employer) to pay a portion of the debtor’s wages to creditors. In this way money held by a third party (the garnishee) may be attached for payment to a creditor. Laws limit the amount of wages that can be garnished. See state laws.

7. Grantor and grantee

The grantor transfers an interest in real estate to the grantee. Often the grantor is the seller and the grantee is the buyer.

These folks may also be called the assignor (grantor) and the assignee (grantee).

8. Guardian and ward

The guardian (appointed by a court) has legal responsibility for the care of a ward (often a child or incompetent adult). The relationship between guardian and ward is called a “guardianship.” Related terms:

  • A. Next friend: Someone acting for another person, like a child, without a court appointment.
  • B. Guardian ad litem: Someone appointed by a court to advocate for a ward’s interest in a particular court case (litigation).

9. Lessor and lessee

I always found these confusing!

The lessor is the landlord; lessee is the tenant. Why don’t they just say so? Oh, well, it’s better than calling them the “party of the first part” and the “party of the second part”! That happens too.

10. The plaintiff and defendant

The plaintiff (P) starts a lawsuit against a defendant (D). The P seeks a remedy from the D. These Greek letters are often used by lawyers for these terms.

11. Appellant and appellee

Whoever loses the lawsuit and appeals to a higher court is called the “appellant” (also called the “plaintiff in error.” Sometimes, simply “a sore loser”).

The former winner, now, in the appeals stage, is called the “appellee” (also called the “defendant in error” or respondent).

The appellant wants to reverse the lower court. The appellee wants to affirm the lower court decision.

12. Settlor, trustee, and beneficiary

In making a trust the settlor (also called the trustor) creates a trust for the benefit of the beneficiary to be managed by the trustee.

A trust is one of the great legal inventions, an instrument that splits property into two forms of ownership: the legal and the equitable ownership.

The trustee has legal title to the trust property (called the corpus). The beneficiary has equitable title. In this case the equitable title is the valuable one! The trust eventually and actually belongs to him.

The relation between the trustee, the beneficiary, the settlor, and the trust is called a fiduciary relationship. In plain English, this means the trustee had better do a good job and serves the interests of those other folks, and not himself.

13. Vendor and vendee

The vendor is the seller. The vendee is the buyer. So, let’s go shopping!

 

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Statutory Definitions of Elder Abuse

November 6th, 2014 | Posted by admin in Family Law - (0 Comments)

Welfare & Institutions Code – 15610.07. Abuse of an elder or a dependent adult

“Abuse of an elder or a dependent adult” means either of the following:

  1. Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
  2. The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Welfare & Institutions Code – 15610.63. Physical abuse

“Physical abuse” means any of the following:

  1. Assault, as defined in Section 240 of the Penal Code.
  2. Battery, as defined in Section 242 of the Penal Code.
  3. Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.
  4. Unreasonable physical constraint, or prolonged or continual deprivation of food or water.\
  5. Sexual assault, that means any of the following:
    • Sexual battery, as defined in Section 243.4 of the Penal Code.
    • Rape, as defined in Section 261 of the Penal Code.
    • Rape in concert, as described in Section 264.1 of the Penal Code.
    • Spousal rape, as defined in Section 262 of the Penal Code.
    • Incest, as defined in Section 285 of the Penal Code.
    • Sodomy, as defined in Section 286 of the Penal Code.
    • Oral copulation, as defined in Section 288a of the Penal Code.
    • Sexual penetration, as defined in Section 289 of the Penal Code.
    • Lewd or lascivious acts as defined in paragraph (2) of subdivision (b) of Section 288 of the Penal Code.
    • Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
      • For punishment.
      • For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given.
      • For any purpose not authorized by the physician and surgeon.

Welfare & Institutions Code – 15610.57. Neglect 

“Neglect” means either of the following:

  1. The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
  2. The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
  3. Neglect includes, but is not limited to, all of the following:
    • Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
    • Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
    • Failure to protect from health and safety hazards.
    • Failure to prevent malnutrition or dehydration.
    • Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

Welfare & Institutions Code – 15610.30. Financial abuse

    1. “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
      • Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
      • Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
    2. A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.
      • A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative.
      • For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).
    3. For purposes of this section, ” representative” means a person or entity that is either of the following:
      • A conservator, trustee, or other representative of the estate of an elder or dependent adult.
      • An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.

Welfare & Institutions Code – 15610.05. Abandonment

“Abandonment” means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

Welfare & Institutions Code – 15610.43. Isolation

      1. “Isolation” means any of the following:
        • Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
        • Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
        • False imprisonment, as defined in Section 236 of the Penal Code.
        • Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
          • The acts set forth in subdivision (a) shall be subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical care.
          • The acts set forth in subdivision (a) shall not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical safety.

Welfare & Institutions Code – 15610.06. Abduction

“Abduction” means the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court.

Welfare & Institutions Code – 15610.53. Mental suffering

“Mental suffering” means fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.

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Introduction to Intellectual Property

October 30th, 2014 | Posted by admin in Business Law - (0 Comments)

Introduction to Intellectual Property:

Intellectual property is a commonly misunderstood term that continues to confuse entrepreneurs, businesses, and inventors alike. Intellectual property refers to a ‘product of the intellect’ that has a commercial value and is used to encompass a wide variety of creations, including songs, artworks, mechanical inventions, machines, software, formulas, designs, brand names, etc.

Intellectual property is an umbrella term for all the laws that together determine what the intellectual property is, who owns the intellectual property, and what rights are assigned to that ownership. Once ownership is established, intellectual property law provides the owner with a ‘negative right,’ meaning that it gives the owner the right to prevent others from copying the ‘product of the intellect.’ For example, an author of a poem could prevent someone else from reproducing the poem. Similarly, the inventor of an invention could prevent someone else from copying the invention.

Types of Intellectual Property:

Intellectual property generally consists of four distinct legal categories; Trade Secrets, Copyrights, Trademarks, and Patents. Although there may be some overlap, each is used to protect the rights for different creative endeavors. If cared for properly, intellectual property can be a valuable asset. However, the devil is in the details and without proper care, what would have otherwise been a valuable commodity, can be lost forever.

The Trade Secret:

A trade secret is any commercial information that has a value (i.e., benefits a business commercially) and is maintained in secrecy. Factors that have been used to determine if something qualifies as a trade secret include:

  • (1) the extent to which the information is known outside the particular business entity;
  • (2) the extent to which the information is known by employees and others involved in the business;
  • (3) the measures taken by the business entity to guard the secrecy of the information;
  • (4) the value of the information to the business; and
  • (5) the ease or difficulty with which the information could be properly acquired by others.

Trade secrets are generally used by a company that wants to maintain proprietary information as confidential. This is to be contrasted with copyrights, patents, and trademarks, all of which require public disclosure. Thus, trade secrets require a level of discretion and secrecy that is put in place to prevent the dissemination of the information. In addition to other secrecy measures, using confidentiality and non-disclosure agreements is generally recommended for any information that a business may want to claim as a trade secret.

The Copyright:

A copyright is a form of protection provided to the authors of ‘original works.’ This includes literary, musical, artistic, and certain other intellectual property. Copyrighted works include original soundtracks, web site design, photographs, poster art, computer programs, books, or even this article. The copyright gives the owner several exclusive rights to the work. For example, the copyright gives the owner the exclusive ‘right’ to ‘copy’ or reproduce the work.

In contrast to other intellectual property, a copyright exists from the moment the work is created. While not required, it is often beneficial to place a notice on the work to inform the public that the work is protected by a copyright. Furthermore, in the event that a work carrying a proper notice is infringed upon, courts will not consider an infringer’s argument that the infringement was innocent. An innocent infringement defense may result in a reduction of monetary awards that would otherwise be available to the copyright owner.

The owner of a copyright has not only the right, but also the responsibility to prevent others from copying or reproducing the protected intellectual property. If an infringer can show that the copyright owner knew of infringing activities and delayed in bringing a lawsuit to stop the infringement, the courts may allow the infringement. In other words, if a copyright owner knew someone was using the material for some time and did nothing to protect their rights, the copyright owner is prevented from enforcing the copyright against the current, and possibly other infringers.

A copyright notice should include the symbol ©, the date the work was first created, and the name of the work’s owner. For example, the copyright notice for this article would read, © 2009, Marcus R.

In addition to notice, a copyright owner should consider federally registering the copyright with the Library of Congress. Federal registration of a copyright is voluntary, though highly recommended. Registering the work places the copyright on public record and provides the originator with a certificate of registration. In the event that someone violates the copyright and uses the work without permission, the registered originator should be eligible for monetary awards by the courts. In successful litigation, the courts can award the owner any losses suffered by the infringement and any profits realized by the infringer. Furthermore, if the court finds that infringement was committed willfully, the court, in its discretion, may increase the award for appropriate treble damages.

As a result of the Copyright Term Extension Act of 1998, most works published after January 1, 1978 last for the life of the author plus 70 years. For example, the copyright for Michael Jackson’s Thriller album will now expire in the year 2079. A few exceptions are made for ‘work made for hire’ agreements and anonymous registrations, in which the copyright lasts between 95 and 120 years, depending on the date the work was published. After the expiration of the copyright, the ‘work’ goes into the public domain and is available for anyone’s use.

In order to federally copyright a work, the piece must be filed with the Library of Congress. Having a professional register your copyright will cost around $200 in attorney’s fees (not including a filing fee of $30). Or, you can do it yourself for only the filing fee. Go to www.copyright.gov for more information.

The Trademark:

Another common form of intellectual property is a trademark or service mark, which operate as source identifiers.

A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms ‘trademark’ and ‘mark’ are commonly used to refer to both trademarks and service marks. In short, a trademark is a brand name. Created to distinguish different companies, products or services, a trademark or service mark provides protection from unauthorized use of a ™mark. A ‘mark’ is defined as a word, a phrase, a name, a symbol, a look or device that is used to indicate the source of a product or service. Typical things that are trademarked are company names, product names, logos, and slogans.

There are three levels of trademarks: (1) common law (2) state level and (3) federal level. A common law trademark is created when a distinctive ‘mark’ is used in commerce for a sufficient amount of time to create a ‘secondary meaning’ (when the trade or consumer has come to identify the specific mark with a company’s products or services). For example, if a shoe company sells shoes to local residents and those residents recognize that companies name as the shoe company in that geographic area, the name of that company will likely have a common law trademark. Common law trademarks provide only minimal protection limited to the geographic area in which the mark is used, such as stopping a competitor who enters your area with the same or confusingly similar mark. However, a common law trademark povides no protection against someone in another area (such as another city) using the same mark.

A state level trademark protects an owner from the unauthorized use of the protected mark in a specific state only.

Alternatively, federal level trademark registration usually supersedes state level registration, and provides far more legal protection than state level trademarks. To qualify for a federal trademark, the business must operate in interstate commerce or be planning to do so. ‘Interstate commerce’ involves sending the goods across state lines with the mark displayed on the goods (a web site used to sell the ‘marked’ goods to another state would qualify). With services, ‘interstate commerce’ involves offering or rendering a service to those in another state.

As with copyrights, federal registration of a trademark is not required. However, federal registration provides several advantages, including providing notice to the public that someone owns the mark, and the exclusive right to use the mark in all states.

Once federally registered, a trademark owner has not only the right, but also the responsibility to stop competitors and other infringers from using any mark that is identical (or confusingly similar) to their trademark. For example, a trademark owner who does not actively pursue each and every infringement on their registered trademark is in jeopardy of losing any rights associated with the intellectual property. In many cases, a trademark owner who fails to enforce their mark faces having the mark declared public domain. Alternatively, with proper ‘use’ and enforcement, the mark could last forever.

In certain circumstances, the courts have awarded the trademark owner all of the infringer’s profits that were made using the mark. And, in some seriously egregious situations, the courts have been known to award the trademark owner up to three times the infringer’s profits.

Before selecting a company, product name, or even a web site address, it is advised to verify whether or not someone else already owns the rights to that name. If the name is a registered trademark, the outcome could be terrifying. The infringing business may not only be forced to stop using the name after investing in signage and materials, but worse yet, the owner could drag the infringing business into court in another state, at the infringing business’ expense, and sue for losses and attorney’s fees.

To avoid such consequences, it is highly recommended that a professional trademark search be done prior to investing any time or resources into a particular name. A trademark search generally costs around $300, and having an attorney register the mark with the United States Patent and Trademark Office (USPTO) costs between $200 and $300 in attorney’s fees (not including a USPTO filing fee of $375). Additional information regarding trademarks can be found at www.uspto.gov.

The Patent:

In many cases, one of the most valuable assets a company can have is a patent or patent portfolio. A patent is the grant issued by the United States Patent and Trademark Office (USPTO), to the inventor of intellectual property rights for an idea or invention. The right conferred by the patent grant is, in the language of the statute and of the grant itself, – the right to exclude others from making, using, offering for sale, or selling – the protected invention in the United States, or ‘importing’ the invention into the United States. Note: a patent does not grant the right to make, use, sell, etc., the invention or idea, but the right to exclude others from making, using, selling, etc., the invention or idea.

The two types of patents that are most often applied for are the design patent and utility patent. A design patent is granted to anyone who invents a new, original, or ornamental design for an article of manufacture. In other words, a design patent protects the actual physical design of a product but NOT the functionality of the product. Instead, only the ornamentation of the product itself is protected.

In order to protect the functional operation of a product, or how it works, the inventor must apply for a utility patent through the USPTO. A utility patent is granted to anyone who invents or discovers any new and useful product, or any new and useful improvement of an existing product.

The scary truth, however, is while something may be patentable; certain actions of an unwary inventor can make it almost impossible to do so. Under current patent law, an inventor is given up to 1 year to file a patent application from the time they: (1) offer to sell the invention or product; (2) describe or disclose the invention in a printed publication; or (3) publicly use the invention. (Warning: most foreign countries do not even provide the inventor with the 1-year window).

In other words, if an inventor who has not filed a patent application offers to sell the invention in a commercial transaction, describes the invention in any publicly available publication or web site, or uses the invention in the public, the patent may be declined and the invention declared public domain. When in the public domain, the invention is useable by anyone without recourse.

Such was the case with Wil Schock of Creep Crafters. Wil had spent approximately 10 years developing a fog-chilling system using easily obtainable ice cubes. In addition to his time, Wil spent thousands of dollars in research and development of the product. With the excitement of having invented this new fog-chilling machine, Wil published an article on his web site and in a publication that described how to make the device. Because Wil did not file a patent application on the fog machine within the appropriate one-year window, he is now barred from being allowed to patent the invention, losing what could have been a valuable asset to his company.

Fortunately for Wil, he later developed several improvements to the original fog machine to perfect the product. This time, Wil learned from his past and filed a patent application on the improvements within the allotted time. Now, instead of giving his invention freely to the public, Wil has added a valuable asset to his company through a patent application.

When and if issued as a patent, Wil can prevent anyone, including competitors, from selling or even using a product based on his invention (in the country that issues the patent). In other words, should a competitor copy Wil’s product, Wil could use the patent in a court of law to force a competitor to stop selling the product. And upon finding for the patent owner, the court will award the patent owner a sufficient amount of money to adequately compensate for the infringement, with interest and costs as fixed by the court. Losses can be measured as a royalty fee, lost profits, or in some cases, the profits of the infringer. Furthermore, if the infringement was done knowingly, the court may increase the monetary award by up to three times the amount found or assessed. Having a patent can provide a significant amount of protection and value to a company.

Filing for patent protection is not cheap. A design patent typically costs between $1,000 and $2,000 in attorney’s fees (not including USPTO fees which start at $230). A utility patent is much more complex and costs significantly more. Based on the complexity of the invention and other factors, a utility patent often costs between $5,000 and $10,000 in attorney’s fees (not including USPTO fees which start at $545). For additional information related to patents, go to www.uspto.gov.

Your ideas are valuable, and as the originator, creator or inventor, you have every right to protect your assets as a form of intellectual property. If you have a great idea or invention, you should file a patent application prior to selling, disclosing, describing or displaying the product or invention (function or design). You should also ensure that the name you choose for a product or business is not already protected by someone else’s trademark. Otherwise, you may take the chance of being sued for all profits collected under the infringed name. Once you have done a search and made sure that your name can be trademarked, apply for federal registration of the mark as soon as possible to keep someone else from causing confusion in the market. Register your original music, attraction storyline, web site and other copyrightable creations with the Library of Congress for additional protection from infringers.

Author: Marcus R. Contact Legal Grind for more information.

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