BUS203 Business Law I Chapter 4

8.1.1 Personal Property

Understanding the distinctions between types of property is essential because different legal rules and regulations apply to different types of property. The destruction or alteration of real property, such as land and buildings, typically requires compliance with various local laws and permits. Real property may also be subject to additional legal scrutiny, especially if it holds historical or cultural significance. In contrast, the disposal or destruction of personal property, like a chair, owned by an individual is generally subject to fewer legal restrictions.

Real property primarily consists of land and things permanently attached to it or associated with it. This category encompasses various types of land, from undeveloped land like forests and fields to developed land with buildings like houses, condominiums, or office buildings. Additionally, real property includes interests associated with land, such as mineral rights. The term "real estate" is often used interchangeably with "real property" and reflects both the concept of land and the ownership interest in it.

In contemporary business, many enterprises rely on real property for their operations, whether it's a physical storefront like a grocery store, coffee shop, or hotel, where customers visit to conduct business. However, with the advent of e-commerce, some businesses operate solely in the virtual realm, and these virtual shops, like eBay stores, do not involve real property. Nonetheless, certain virtual real properties, such as those in virtual worlds like Second Life, can be exchanged for real money, leading to a unique intersection between the virtual and real worlds.

Personal property encompasses all property that is not considered real property. This category includes tangible property, which can be physically touched and moved, and is often referred to as chattel. Various businesses specialize in selling personal property, with major retailers like Wal-Mart, Amazon.com, and Sears primarily focused on selling these goods. Some personal property can also be classified as fungible property, which means it can be easily replaced with identical items. For example, items like sugar, juice, oil, metals, and physical currency are considered fungible.

There is also intangible personal property, which lacks a physical presence but is still subject to principles of ownership, transfer, and sale. Examples of intangible property include contractual rights, patents that grant exclusive rights to a product, and copyrights that prevent others from using specific materials.

However, the classification of property can sometimes become complex when an item initially classified as personal property becomes attached to real property, effectively making it a fixture. A fixture is an item that was once personal property but has been affixed to the land in such a way that it is legally considered part of the real property. Fixtures are treated like real property, and when real property is transferred, fixtures are included in the transfer. For instance, if you purchase a Jacuzzi, install it in your home, and construct a deck and plumbing for it, the Jacuzzi becomes a fixture. If you decide to move or are renting the property, the Jacuzzi typically remains with the land, unless you make specific arrangements to remove it. The removal of fixtures can cause substantial harm to the property and is generally not allowed, particularly when renting from a landlord.

Ownership of real and personal property can become intricate when distinguishing between property that is naturally part of the land (real property) and property that can become personal property when severed from the land. Crops and trees are prime examples of property that shifts from real property to personal property when they are detached from the land. For instance, when an ear of corn is picked from a stalk, it becomes personal property, even though it was real property while attached to the land. Similarly, when a tree is cut down, it transforms from real property to personal property.

In addition to property types, ownership classifications also apply. Both real and personal property can be either private or public. Private property is owned by individuals, corporations, partnerships, or any entities that are not part of the government. It encompasses real property like land or buildings and personal property like vehicles, furniture, and electronics. Public property, on the other hand, is owned by the government and can include real property like national parks or public forests, as well as personal property like vehicles or furniture owned by state or local governments.

Personal property can be acquired in various ways, including through the process of production. If you create something, you typically own it, unless you're producing it within the scope of your employment for someone else. For example, if you purchase four yards of wool fabric and sew a coat from it, you own the coat because you made it using your materials. This is known as ownership by production. However, if you sew a coat as part of your job while working for an employer, the coat will be owned by the employer.

Property can be acquired through various means, with purchase being one of the most common methods today. Purchasing property involves buying it, which can apply to goods and supplies in a commercial context, especially for merchants governed by the Uniform Commercial Code (UCC).

Gifts are another way to transfer property. A gift is a voluntary transfer of property from a donor to a donee. For a gift to be valid, the donor must have the intent to gift the property, deliver the gift, and have it accepted by the donee. Conditional gifts involve specific conditions that must be met for the gift to transfer. For example, if someone promises to give you a car upon your graduation from school, the car's transfer is conditional on you graduating.

The well-known phrase "finders keepers" is not as straightforward in the realm of law. When someone finds personal property, they may claim ownership if it's considered abandoned. Property is abandoned when the owner intends to relinquish ownership. For example, if you discard your chair at a landfill, it's considered abandoned property, and someone else can take possession of it. If the property is simply lost or mislaid, the finder must return it when the rightful owner demands its return. Refusing to do so may lead to a legal claim of conversion, a tort involving the intentional, substantial interference with another's property.

Another classification for found property is treasure trove, which typically includes money or precious metals like gold. For treasure trove, the concept of "finders keepers" may sometimes apply.

The scenario involving the next-generation iPhone prototype left on a bar stool raises questions about property classification and legal implications.

In this case, the prototype of the iPhone was not abandoned because Apple clearly wanted the property back, demonstrating no intention to relinquish ownership. The concept of treasure trove doesn't apply since the item found is not money or precious metals. Instead, it falls into the categories of being either lost or mislaid, as it was unintentionally left behind or set down for later retrieval, but the owner had forgotten its location.

If Apple had filed a civil lawsuit against Gizmodo, it would likely be for conversion, as Gizmodo obtained and dismantled the property without permission. A successful conversion claim would have awarded damages to Apple but would not have required Gizmodo to return the property itself.

It's worth noting that California's criminal statutes include provisions regarding the duty to return lost or mislaid property. The facts of this case were being investigated for potential theft charges.

This case underscores the importance of understanding property classification and legal rights when dealing with found items, especially when valuable intellectual property is involved.

Sometimes, it becomes necessary to entrust one's personal property into the care of another party. Take, for instance, the scenario where you are the guardian of a beloved feline companion. If your cherished cat, considered a piece of personal property, requires surgery, you'll need to leave her at a veterinary hospital. It's imperative to note that this act does not in any way equate to abandonment. You have not misplaced or carelessly left your cat, and she certainly doesn't fall under the category of treasure trove.

In this context, you assume the role of the 'bailor,' the rightful possessor of personal property, who willingly places their property in the custody of another. This arrangement is known as a 'bailment.' A bailment is a contractual agreement where the rightful owner (in this case, you) of personal property entrusts said property to another party. The receiving party, referred to as the 'bailee,' agrees to accept this responsibility and is bound by the duty to safeguard and eventually return the entrusted property.

The 'bailee' is the individual who temporarily assumes possession of someone else's property. In our cat surgery example, you rightfully possess your cat as she is your personal property. When you entrust your cat to the veterinarian, they willingly accept this responsibility, and you can rightfully expect the safe return of your beloved pet when you request it. In fact, the veterinarian has a legal obligation, owing to the bailment, to ensure the return of your cat to you.

An analogous case to this is highlighted by a case where Delta Airlines acted as the bailee for a dog, which unfortunately was lost in the process.

The bailee bears specific responsibilities towards the bailor, which can vary based on the nature of the bailment. A crucial aspect of these responsibilities is the duty to exercise reasonable care while the property is under the bailee's care. The degree of care required, however, differs depending on the specific circumstances of the bailment.

In situations where the bailee is the sole beneficiary of the bailment, they are obligated to exercise extraordinary care when handling the entrusted personal property. A typical example of such a scenario is when the owner loans their property to someone without any reciprocal benefit. For instance, if you lend your neighbor a snow shovel without seeking anything in return, your neighbor exclusively benefits from the bailment. In this case, they are obligated to handle the snow shovel with the utmost care and diligence.

Conversely, when both parties involved in the bailment derive benefits, as seen in the case of renting a DVD from Blockbuster, only a duty of ordinary care is imposed on the bailee. The bailee receives the DVD, and Blockbuster obtains a rental fee, making it a mutually beneficial arrangement. Consequently, the bailee is expected to exercise a standard level of care.

In contrast, if the benefit of the bailment is solely for the bailor, the bailee is only required to provide minimal care. While gross negligence can result in liability, the bailee is not held to the same rigorous standard of care as in other situations. For instance, if someone asks you to look after their books while they take a dip in a swimming pool, you would have a minimum duty of care. If, in an unfortunate event, the books were lost, you would not be held liable. However, if you were to intentionally throw the books into the pool, you would be deemed grossly negligent and could be held liable for any resulting damages.

Furthermore, there are two primary types of bailments. An involuntary bailment arises when an individual discovers lost or mislaid property. The duties and responsibilities regarding the found property may vary from state to state, but destruction of the property is generally prohibited. Conversely, a voluntary bailment is established when there is a clear intent to create the bailment, as detailed in the previous paragraph.

Bailment is a prevalent concept within the business world, finding application in various scenarios. Common instances of business-related bailment include entrusting packages or goods to common carriers for delivery, temporarily warehousing goods with third-party entities prior to sale or delivery, and providing valet services for clients' or customers' vehicles. However, the question arises as to whether businesses should have the ability to disclaim bailment and the accompanying responsibilities.

For example, let's consider a scenario where a hotel mandates its guests to sign a "no bailment created" clause during check-in. The underlying question is whether such a clause should absolve the hotel from any liability in cases where the personal property of the guests is damaged while under the hotel's care.

This issue raises important legal and ethical considerations. While businesses may seek to limit their liability through disclaimers, it's crucial to recognize the potential consequences. By asking guests to waive their rights under bailment, businesses may, in effect, be avoiding their duty to exercise reasonable care with guests' belongings. This could lead to contentious situations and potential legal disputes if guests' property is damaged or lost.

The enforceability of such disclaimers can vary based on jurisdiction and applicable laws. Some jurisdictions may uphold these disclaimers to a certain extent, while others may find them unenforceable if they conflict with fundamental principles of fairness and responsibility.

In essence, the decision of whether businesses should be allowed to disclaim bailment and its associated duties is a complex matter that involves a delicate balance between protecting businesses from excessive liability and ensuring the fair treatment and protection of customers' or clients' property. It necessitates a thorough examination of relevant legal and ethical standards, and should ideally aim for a fair and reasonable compromise that safeguards the interests of all parties involved.

8.2.2 Real Property

Real property encompasses land and certain elements permanently associated with it. This category includes undeveloped land, such as forests or open fields, as well as constructed edifices like houses, condominiums, and office buildings. Real property also extends to elements intrinsically linked to the land, such as subsurface rights. Fixtures represent personal property items that have become affixed to the land and are consequently conveyed with it. Examples of fixtures within a house encompass ceiling-mounted light fixtures, the heating furnace, and the bathtub. Plants and trees growing on the land are considered real property until they are severed from it. For instance, a farmer's crops are part of their real property until they are harvested, at which point they transition into personal property.

Real property can be acquired for ownership in various ways, including purchase, inheritance, gift, or even through adverse possession. The transfer of ownership rights is facilitated through a title. Ownership of real property grants the proprietor the right to possess the property and the authority to exclude others, all within the confines of the law. When another party substantially interferes with your use and enjoyment of your real property, you may pursue a claim under nuisance law, a facet of tort law. For instance, if a neighbor chooses to burn tires on their property, the noxious odor from the burning tires could substantially disrupt your property's use and enjoyment, thereby giving you a legitimate claim in nuisance. Likewise, as a real property owner, you have the right to seek compensation from individuals who intrude into your land without your consent or permission, a situation that would warrant a trespass to land claim. Real property owners also possess the option to sell their real property, either in its entirety or in part.

The primary method of acquiring real property is through purchase, a process governed by state property laws, which can vary considerably. Typically, an individual interested in obtaining real property seeks the assistance of a third party, such as a real estate agent or broker, to help identify a suitable property and facilitate the terms of the transaction. The buyer and seller engage in negotiations, culminating in a contract that encompasses all the vital aspects of the sale. This contract specifies details such as the property's location, the purchase price, which fixtures will be excluded from the sale, and the nature of the ownership interest being transferred.

Both parties then fulfill their obligations as outlined in the contract; for instance, the buyer remits payment, and the seller transfers the property's title through a deed. This process is known as "closing." Following the successful conclusion of these steps, the deed is officially recorded. It's important to note that, according to the Statute of Frauds, any contract relating to an interest in real property must be in writing to be legally binding against the defendant

Different types of deeds convey distinct interests. For example, a quitclaim deed transfers whatever title interests the grantor holds in the property to the recipient. If the grantor possesses no title interests in the real property, a quitclaim deed will not confer any title interests to the recipient. In other words, if you were to issue a quitclaim deed for the Empire State Building to a friend, you would essentially be transferring whatever title interests you have in the building to your friend. However, if you have no title interests in the Empire State Building to begin with, then your friend would not acquire any interests in the building through the quitclaim deed. It's crucial to understand that one cannot transfer interests they do not possess.

On the other hand, many states permit the use of a warranty deed, which not only transfers title but also includes a warranty against defects in title and encumbrances. Buyers commonly request a warranty deed when acquiring property, as it offers additional protection and assurance.

Upon the transfer of title through the deed, it is customary to record the deed, although this step is not imperative for establishing ownership. Recording the deed holds substantial importance because it serves as public notice of property ownership. While ownership is not contingent upon recording, it effectively alerts others that the individual who has recorded the deed is the rightful owner of the property.

In this regard, various states employ different legal doctrines to resolve potential conflicts. Some states employ a "race" statute, favoring the rights of the first party to record a deed when there are competing claims to the property. Conversely, other states utilize a "notice" statute, giving priority to those who acquired an interest in the property first without prior knowledge of competing claims. A "race/notice" system incorporates both statutes, offering precedence to the initial bona fide purchaser who records their claim when disputes arise. A bona fide purchaser is simply someone who acquires title in good faith, without being aware of competing title claims.

In addition to outright purchase, real property can also be obtained through inheritance. The transfer of real property through inheritance can occur via a will or may be determined by state statutes when an individual passes away without a will. Generally, individuals have the autonomy to dictate the disposition of their property upon their demise, provided that their will or other transfer instrument adheres to the state's requirements for validity. When a person passes away without a valid will, state statutes typically dictate the distribution of the property among the decedent's relatives. This distribution often begins with the spouse, and in the absence of a spouse, proceeds to children, parents, siblings, and so forth. If no eligible heirs are identified, the property may ultimately escheat to the state.

Real property may also be acquired through a gift. For such a gift to be valid, the donor must genuinely intend to convey title, deliver the deed to the recipient, and have the gift accepted. If any of these key elements is not fulfilled, such as the deed not being delivered to the intended party or a third party designated to hold it for the recipient, then the gift will not be deemed complete, and title will not be conveyed.

An alternative and less common method of acquiring real property is through the legal doctrine of adverse possession, colloquially known as "squatter's rights." This doctrine fundamentally hinges on the belief that the value of land lies in its productive use. If a piece of land remains dormant in the hands of the owner, while someone else puts it to practical use, the law may, under specific circumstances, favor the claim of the user over that of the actual owner.

Adverse possession occurs when an individual who is not the legal owner of a piece of real property asserts a claim of ownership over it. To succeed under this doctrine, several essential elements must be satisfied. 

These elements include the following:

Actual Possession: The possessor must physically occupy and possess the property.

Open and Notorious Possession: The possession must be conspicuous and apparent to others, meaning it should be visible and observable.

Hostile Possession: The possession must be against the interests of the true owner, indicating that the possessor does not have permission or authorization from the owner.

Continuous Possession: The possession must be uninterrupted and must not have been disrupted during the statutory timeframe necessary to claim title through adverse possession.

Exclusive Possession: The possession must be exclusive, indicating that the possessor exerts control over the property to the exclusion of others.

Statutory Timeframe: The state-specific length of time required for adverse possession must be met, and this duration varies from one state to another. For example, some states, like Maine, stipulate a twenty-year timeframe, while others, like Nevada, mandate only a five-year period.

Furthermore, certain states' adverse possession laws may also necessitate that the possessor pays property taxes on the land during the course of the adverse possession. If all of these elements are successfully met, the possessor can initiate a legal action to quiet title. If successful in this action, the possessor becomes the lawful owner of the property without any compensation being provided to the former owner.

Adverse possession and quiet title claims often revolve around property boundaries, particularly in situations where one party habitually uses another's property due to the misplacement of a fence. These scenarios also arise in cases concerning land owned by individuals who do not frequently visit it, such as remote properties. Moreover, claims may arise in instances of ouster, where a tenant in common constructively or actually evicts others who hold valid ownership interests. It's essential to remember that for an action for quiet title to be successful, all elements of adverse possession must be consistently met for the entire duration of the statutory timeframe. In cases where an owner discovers someone occupying the property during this period, the owner must take action to interrupt the adverse possession elements, often by evicting the trespasser, which can involve summoning law enforcement. Such an intervention is necessary to break the continuity requirement.

A recent case in Boulder, Colorado, led to significant changes in the state's adverse possession laws after a married couple, one of whom was a judge and the other an attorney, met the requirements for adverse possession and successfully brought an action to quiet title. The adverse possessors in this case displayed a clear understanding of the legal nuances. The property's original owners had purchased the land years earlier with the intention of building a retirement home in the future. 

It's worth considering whether the legislative changes in Colorado were proportionate to the circumstances of the case or if they amounted to an overreaction. The balance between protecting property rights and addressing adverse possession claims is a complex issue that often prompts debate and legal reform.

Ownership of real property carries a multitude of responsibilities and offers both the potential for significant profit and the potential for substantial liability. It is imperative to comprehend the obligations associated with property ownership and understand how to shield yourself against potential liabilities.

For example, consider the scenario where a toxic waste site is uncovered on your real property. In such a case, you might be held responsible for the cleanup, even if you were unaware of the site's existence when you acquired the land. Every purchaser of real property bears a responsibility to conduct due diligence during the acquisition process. The underlying principle is that you should have been aware of the site's presence had it been discernible through a reasonable inspection. This knowledge, combined with an understanding of federal legislation such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), underscores the importance of never buying land "sight unseen." It is advisable to involve a trusted professional inspector in the process to ensure a thorough assessment of the property's condition. Furthermore, if you plan to sell property and are aware of the existence of an old toxic waste site, you have a legal duty to disclose this defect to potential buyers before transferring ownership.

Moreover, one must consider the responsibilities of landowners concerning individuals who enter their property. What obligations do landowners have toward visitors in their homes or businesses, including those who may be trespassing? These responsibilities can differ based on the legal status of the person who was injured.

Lastly, if a valuable discovery, such as a gold mine, is made on land you used to own, the potential for profit from that discovery is often limited if you have already transferred full ownership of the property to another party.

Think of this scenario what if you found a gold mine on land that you used to own. Could you still profit from that discovery? Most likely the answer is no if you conveyed full ownership to another person. 

Understanding the responsibilities of landowners, implementing strategies to mitigate liability linked to land ownership, and discerning the instances of liability severance are vital considerations. Exploring these questions in-depth becomes particularly relevant when delving into the realm of ownership interests.

Furthermore, gaining an understanding of how a real property owner may utilize the property and the extent of their rights is crucial. Think about some of these questions. What if you own a lot in the middle of a city, can you build an apartment building which blocks the neighboring landowner’s light? What if you own a piece of raw land where you discover oil, can you drill on your land if it siphons oil from underneath your neighbor’s land, or if it causes your neighbor’s land to collapse due to lack of subsurface support? 

The subsequent sections delve into the responsibilities of landowners, the intricacies of ownership interests, and the breadth of one's stake in real property.

Duties of Landowners

Landowners bear distinct responsibilities toward individuals based on their status as trespassers, licensees, or invitees.

A trespasser, entering the land without permission, is owed a duty by the landowner not to intentionally cause harm. This precludes the use of prohibited measures like booby traps, pitfalls, or similar hazards. In the event of injury from such hazards, trespassers can pursue valid claims against the landowner.

Licensees, those with permission to be on the land, are entitled to a heightened duty of care. The landowner must refrain from intentional harm and additionally, warn licensees about known defects. For instance, if a landowner is aware of icy steps on their porch, they are obliged to alert licensees, such as visiting friends, to prevent potential liability.

Invitees, individuals invited onto the property, whether by businesses or public spaces, are owed the highest duty of care. Landowners must actively inspect the property for defects, promptly address any identified issues, and provide warnings to invitees regarding potential hazards. This duty is exemplified by caution signs in places like grocery stores, especially after activities such as mopping or liquid spills, demonstrating the commitment to ensuring the safety of invitees.

Ownership Interests in Real Property

Various forms of ownership interests exist in real property, ranging from unrestricted ownership to more nuanced conditions, the breach of which may result in the loss of those interests.

The most comprehensive ownership interest is exemplified by fee simple absolute, representing the utmost ownership recognized by law. Typically, those seeking to acquire real property aim for ownership in fee simple absolute.

In contrast, a defeasible fee involves a condition or a future event affecting ownership. For instance, if land is donated to "the City of Nashville, so long as it is used as a public greenway," the ownership is defeasible, reverting to the original owner or the holder of the reversion interest if the condition is violated.

Another type of ownership interest is a life estate, measured by the owner's lifespan. Granting real property ownership to someone for the duration of their life, with the expectation of it reverting upon their death, illustrates a life estate. This concept is also utilized in a common investment strategy known as a reverse mortgage. In a reverse mortgage, the purchaser allows the seller to retain possession of the property for a specified period (e.g., their lifetime) in exchange for purchasing the property at the current market value. This investment strategy relies on the anticipation of property value appreciation, making it attractive for investors who do not immediately require possession. However, such arrangements come with risks. Which was illustrated in a home owner that did a reverse mortgage on a building and the lease owner had an agreement to pay 500 a month for rent until she died which didn't happen till 120 years. As a result the owner of the building was unable to increase the cost of her rent as rents increased in price. It was a good deal for him at the time 30 years prior but as time went on that good deal got sour. 

In instances where multiple individuals share ownership of a property, various forms of co-ownership interests are legally recognized, each holding significance in matters such as possession, the right to transfer, entitlement to profits, and liability.

For instance, tenancy in common denotes an ownership arrangement where all owners possess an undivided interest in the property, enjoy equal rights of possession, and hold devisable interests. In contrast, joint tenancy entails an ownership interest where the surviving owner is granted the right of survivorship. To illustrate, consider co-owning a gold mine with a partner, Frank. Opting for a joint tenancy would mean that if Frank were to pass away, his interest in the gold mine would seamlessly transfer to you, bypassing potential complications with his heirs. This stands in contrast to tenancy in common, where Frank's share might end up being inherited by someone you may not wish to be in partnership with, such as his grandson.

Similarly, a tenancy by the entirety incorporates the right of survivorship but is exclusive to married couples. It's important to note that this concept is recognized in some states but not universally adopted across all jurisdictions.

Distinct co-ownership interests are established through precise language in the conveyance instrument. For instance, a tenancy in common is formed by using general language like "To John and Frank" when designating co-owners. Conversely, for a joint tenancy, a more explicit conveyance is required, such as "To John and Frank, with rights of survivorship." It's noteworthy that the possibility of benefiting from a tenancy by the entirety is contingent on factors such as residing in a state recognizing same-sex marriages and being legally married, though the legal landscape for same-sex marriage is still evolving in many jurisdictions.

In a tenancy in common, a co-owner has the unilateral right to sell or transfer their interests without seeking approval from the other co-tenants. Consider the scenario where you co-own a farm with a friend but disagree on farming practices. If you wish to sell your interests due to a change in practices, your friend cannot obstruct the sale. Importantly, any subsequent liabilities, such as harm caused by activities on the land after the sale, would not be attributed to you, as your liability is severed upon the transfer.

In contrast, joint tenancy and tenancy by the entirety necessitate the consent and approval of co-tenants for the transfer of interests. Disputes between joint tenants may lead to court intervention, resulting in a partition of the land. This partition effectively transforms former joint tenants into independent landowners with the freedom to utilize or dispose of their property without encroaching on the rights of others.

Scope of Interests in Real Property

The scope of ownership holds paramount importance, dictating the permissible actions or limitations concerning the use of the land. While the surface of the land and its attached structures are commonly included when considering the scope of real property ownership, various interests can be distinctly parsed and conveyed. These include subsurface or mineral rights, rights to light or a view, and the complex allocation of water rights, which varies between the western and eastern United States. Additionally, easements and covenants confer specific rights to individuals who do not possess the land.

Subsurface or mineral rights grant ownership over substances beneath the land surface. For instance, if one is interested in oil drilling but doesn't want to acquire entire parcels of land, the option might be to purchase or lease mineral rights, affording the right to extract and sell the resources found below the surface.

Water rights are determined by different doctrines in the United States. States east of the Mississippi River typically follow the riparian water rights doctrine, where those living adjacent to the water have a shared right to use it. In contrast, most western states adopt the prior appropriation concept, granting rights to those who first utilized them. This policy, while ensuring beneficial use, doesn't require the owner to be an adjacent landowner, leading to unique land uses in arid regions where water rights are highly prized. Notably, under prior appropriation, rights can be lost if water is not put to beneficial use, creating a "use it or lose it" dynamic. Moreover, adjacent landowners in these states may not have inherent rights to the water flowing through their land, a common occurrence in prior appropriation jurisdictions.

Easements and covenants represent nonpossessory interests in real property. An easement is established either explicitly or implicitly, typically granting individuals the right to use another's land for a specific purpose. Common examples include utility easements, allowing companies access to maintain infrastructure such as poles, power lines, and cable lines on others' land. Easements can also be granted to address practical needs, like a landlocked property obtaining a driveway easement across another property or the public being granted an easement to walk along private land for shoreline access.

On the other hand, a covenant is a voluntary restriction on land use. Homeowners associations' rules often embody covenants that limit owners' rights for aesthetic reasons. For instance, these covenants might dictate approved house colors or include prohibitions against building swimming pools.

Certain covenants and easements run with the land, meaning that the restrictions apply to subsequent property owners. The determination of whether a covenant or easement runs with the land hinges on the type of interest granted.

Landlord-Tenant Relationships

A leasehold interest in real property is established when one rents an apartment, house, or dormitory room, becoming a tenant with specific rights and responsibilities. In this arrangement, the tenant is the occupant, and the property owner assumes the role of the landlord. The leasehold is a possessory interest defined by the terms stipulated in the lease agreement. For instance, a tenant possesses the right to exclusive use of the property and is obligated to adhere to occupancy rules set by the landlord. Conversely, a residential landlord holds the right to receive rent and is responsible for maintaining habitable premises. If either party fails to fulfill their obligations under the lease, legal remedies may be pursued. For example, non-payment of rent may lead to lawful eviction by the landlord, even if the lease term has not expired. As with other real property interests, leases typically require written documentation for enforceability.

Various types of tenancies can be established, with tenancies for years and periodic tenancies being the most common. A tenancy for years is a fixed-duration arrangement, even if the lease term is less than a year, such as a nine-month lease for a school year. On the other hand, a periodic tenancy runs for a specific period and automatically renews unless terminated by either party. Less common tenancies include tenancy at will, without a fixed duration and terminable at the will of either party, and tenancy at sufferance, arising when a tenant remains on the property without the right of possession and without the landlord's consent.

Tenancies can be established for either residential or commercial purposes, with commercial leases often spanning longer durations than residential ones. Commercial lease terms of five, ten, twenty-five, or even ninety-nine years are not uncommon. While many responsibilities and duties overlap between residential and commercial leases, there are notable distinctions. For instance, a commercial tenant might negotiate with the landlord to exclude competitors from renting space within the same building. For example, a golf shop in a strip mall might insist, as a lease term, that the landlord refrains from leasing other retail space to a competing golf shop within the same strip mall.

Lease interests are generally assignable, unless expressly restricted by the lease agreement. This implies that the rights conveyed by the lease, being a contractual agreement, can be transferred to another party through assignment unless explicitly prohibited within the lease terms. Restrictive clauses on assignment, akin to residential no-subletting clauses, are commonplace in commercial leases, often requiring landlord permission for assignments.

Just as the owner of real property can sell any or all of their interests, any ownership interest in real property can also be leased. For instance, someone who owns subsurface rights may lease the right to drill for oil or gas to another party.

9.2.2 Patents

Consider that you have innovated the Apple iPhone 4. When you create a patentable item that meets the criteria of being useful, new, and nonobvious, and you can clearly describe it, seeking a patent becomes a way to protect your invention. A patent provides property rights to the inventor for a defined period, with utility patents and plant patents expiring twenty years after the original patent application, while design patents expire fourteen years later. The individual who owns a patent is referred to as a patentee.

However, if you developed the Apple iPhone 4 as part of your employment in a creative and inventive capacity, any patents obtained for your work would typically be assigned to your employer. Many inventors and designers engage in creative work under the employ of others, enabling the necessary funding for innovative ideas in exchange for the property rights stemming from patents awarded for those inventions.

There are three main types of patents. Utility patents can be granted for machines, processes, articles of manufacture, compositions of matter, or improvements to any of these items—reflecting the category to which the Apple iPhone 4 likely belongs. Design patents are applicable to ornamental designs for articles of manufacture, while plant patents cover inventions or discoveries of asexually reproduced plants, such as those produced through methods like grafting.

Not all concepts are eligible for patent protection. For example, a mere idea without a clear and definite description is not patentable. Even if one conceives the idea of something identical in appearance and function to the Apple iPhone 4, a patent cannot be obtained solely for the idea. Additionally, physical phenomena, laws of nature, abstract ideas, and artistic works are not patentable, although the latter can be protected by copyright. Furthermore, otherwise patentable subjects that lack utility or are offensive to public morality are not eligible for patents.

Ownership of a patent, akin to real property ownership, bestows the right to exclude others. Similar to protecting one's right to exclude intruders from their land, a patent provides the legal right to exclude others from making, using, or selling the patented product. This aligns with the Copyright Clause of the U.S. Constitution, granting inventors the "exclusive Right to their...Discoveries." To legally engage in activities related to the patented product, others must obtain permission from the patentee, often through a licensing agreement that authorizes them to sell, make, or use the product.

For example, utility patents cover certain genetically modified agricultural products, such as Genuity Bollgard II Cotton patented by Monsanto Company. This cotton is designed to resist worm damage, addressing a significant concern for cotton farmers. The patentee, like Monsanto Company, holds numerous patents on agricultural products like cotton, soybeans, canola, and corn in the United States, where these patents typically protect new plant breeds and parts of the plants. However, in countries like Canada, the patenting of life forms is not permitted. In such jurisdictions, patents often protect genetically modified parts of life forms, such as genes and cells, as well as the process for inserting genes into cells.

Genetically modified plants satisfy the essential criteria for patent eligibility, as they are useful, new, and nonobvious. The utility of these plants lies in their possession of specific qualities for which they were designed. For instance, Genuity Bollgard II Cotton, designed to resist various damaging worms while reducing the need for insecticides, is a prime example of a genetically modified plant with evident utility. Similarly, genetically modified agricultural products like Monsanto Company's Roundup Ready line, which are resistant to the herbicide glyphosate, offer utility by allowing farmers to plant crops before clearing fields of weeds, thereby optimizing land use and reducing labor-intensive practices like hand-weeding.

The novelty requirement for patentability is met when no one else has applied for a patent for the particular invention. If another entity had invented a product similar to Genuity Bollgard II Cotton before Monsanto did, Monsanto would not have been allowed to patent that product. This underscores the "first to invent" rule observed in the United States, where the first inventor is granted the patent. In contrast, many other countries follow the "first to file" rule, granting a patent to the first applicant, regardless of who initially invented the product. While there have been discussions about amending the U.S. Patent Act to adopt the "first to file" rule, no such amendment has been enacted as of now.

Genetically modified plants are considered nonobvious inventions if they differ significantly from prior uses, making them not apparent to someone with ordinary skill in genetically modified plant technology. For instance, a small change in the color of a single cell in the entire plant would likely not meet the threshold for patentability.

The ability to patent living things, including plants, in the United States was established in 1980 with the Supreme Court case Diamond v. Chakrabarty. The court ruled that a bacterium designed by its inventor to break down crude oil components was a legitimate subject of a patent. This decision reflected the congressional intent that "anything under the sun that is made by man" is patentable. Since then, numerous living organisms, such as the OncoMouse, one of the first patented mammals, have been patented. The OncoMouse is valuable in medical research due to its high susceptibility to cancer.

The patentability of life forms remains a contentious issue, raising ethical concerns. For instance, questions arise about the ethics of intentionally creating life in a laboratory, subjecting it to pain, sickness, and medical procedures, as seen with the OncoMouse. Many people find the idea of "creating" life in a laboratory morally objectionable and fear a slippery slope, raising concerns about potential future patenting of humans. Although humans are not currently patentable subjects, discussions on this topic often involve the slippery slope argument.

In the context of genetically modified agricultural products, concerns center around the control and ownership of essential life items, such as staple crop seeds. The potential for cross-pollination between genetically modified and non-genetically modified agricultural products complicates matters. Courts recognize that when cross-pollination occurs, the patentee has rights over the progeny containing patented genes or cells. This raises ethical and practical questions, particularly when it comes to the concentration of control and ownership over vital agricultural resources.

The issue of pharmaceutical drug patents is a source of controversy, particularly concerning the practices of large drug companies. These companies heavily rely on patent law to safeguard their substantial investments in researching and developing new drugs, even though a majority of these drugs never make it to market. For the few that gain government approval and achieve commercial success, manufacturers aim to maximize prices during the period of patent monopoly. An example is the antiretroviral drugs used by HIV/AIDS patients, which, while significantly extending lives, cost between $10,000 and $12,000 per year in the United States. In many developing countries in Asia and Africa, the impact of these drugs could be transformative. Some governments have declared national health emergencies, utilizing international treaties to enforce compulsory licensing, forcing drug companies to license formulas to generic drugmakers. Cipla, a generic drug manufacturer in India, produces the same antiretrovirals for about $350 a year, less than one dollar a day.

The U.S. Patent and Trademark Office (USPTO) grants property rights to patentees within the United States and its territories. Patent law is intricate, and attorneys handling patent prosecution must possess an engineering or science background and pass a separate patent bar exam. Upon filing an application, the USPTO assigns a patent examiner to assess whether the application should be approved. During the application process, the applicant can use the term "patent pending" in marketing to indicate that a patent claim has been filed. Even after a patent is issued, it is "presumed" to be valid, but final validity is subject to the U.S. federal courts if a challenge arises. The U.S. Supreme Court, under Chief Justice John Roberts, has increased its involvement in patent disputes in recent years, suggesting a potential concern that too many patents have been issued.

Over the past decade, there has been a staggering over 400 percent surge in the number of patent filings, leading to significant delays in processing applications. This surge can be attributed in part to the increased prevalence of business method patents. A business method patent aims to establish a monopoly over a novel way of conducting a business process. As an illustration, Figure 9.5 depicts a patent filing for "One-Click Web Ordering," outlining a method of e-commerce where a customer can order and pay for an item instantly with a single click of a mouse button. Amazon.com secured the one-click patent, causing dissatisfaction among other online retailers like Barnes & Noble, who were barred from implementing a similar checkout mechanism. Amazon subsequently licensed the patent to Apple, allowing the tech giant to incorporate the one-click feature on its website.

                                                             Figure 9.5:

Beyond the borders of the United States, a patent granted by the USPTO does not extend protection to the inventor's rights internationally. To safeguard those rights on a global scale, inventors must take additional steps. Unauthorized possession of a patented object constitutes an infringement on the patent owner's rights, making the possessor liable for legal action. Patent infringement is a actionable claim, and a successful legal proceeding may lead to remedies such as an injunction, treble damages, costs, and attorney's fees. Challenging the validity of the patent is one potential defense against a patent infringement claim.

In recent years, a trend has emerged where certain companies engage in litigation primarily focused on suing other companies for patent infringement. These entities, often referred to as patent holding companies or patent trolls by critics, specialize in acquiring patents from companies that no longer wish to retain them and subsequently identify potential infringers. An example is NTP, a company that sued Research in Motion (RIM), the manufacturer of the BlackBerry device, over a critical technology integral to the BlackBerry's push e-mail feature. Faced with the threat of service disruption, RIM opted to settle the case by paying over six hundred million dollars.

9.3.3 Trade Secrets

Picture yourself in an antique store stumbling upon a nineteenth-century ledger book originally from the W. B. Morrison & Co. Old Corner Drug Store in Waco, Texas. Amidst the recipes for hair restorers and cough syrups, a particular item catches your attention—a recipe entitled D Peppers Pepsin Bitters. Unbeknownst to you, Dr. Pepper was first created and served in that very drugstore. Intrigued, you offer to purchase the ledger book for two hundred dollars, unaware that it might contain the closely guarded recipe for Dr. Pepper, a trade secret known only to three people according to the company that manufactures it. This scenario mirrors the experience of Bill Waters, who made this discovery in an antique store, paying two hundred dollars for the ledger book without initially recognizing its potential significance. Unlike patents, a trade secret can endure indefinitely, as long as its owner successfully keeps it confidential. If someone lawfully uncovers the secret, the protection ceases. Reverse engineering is a legal method for discovering a trade secret. However, accessing secrets from an employer's safekeeping while employed and bound by a confidentiality agreement constitutes misappropriation, giving the owners grounds to pursue damages.

Trade secrets differ significantly from patents in a crucial aspect. When applying for a patent, the inventor is required to disclose the specifics of the invention, relinquishing the secrecy of the details. Despite this exposure, the patent holder gains a legal monopoly over the property for a predetermined duration. Even if others uncover the inventions secret—made easier by the public accessibility of patent applications—they are prohibited from making, using, or selling it without the patentee's consent. However, once the patent expires, the patentee loses the property right to exclude others.

So, what defines a trade secret? Essentially, it is confidential information encompassing processes, formulas, patterns, programs, devices, methods, techniques, or compilations. For many businesses, lists of suppliers, costs, margins, and customers fall under the category of trade secrets. Examples include soft drink recipes, KFC's eleven spices, Krispy Kreme's donut mix, the special sauce for the Big Mac, and even the specific wood combination used to burn Budweiser beer. The information must derive economic value from its secrecy, not easily discoverable by others, and efforts must be made to maintain its confidentiality. While most states have adopted the Uniform Trade Secrets Act (UTSA), defining trade secrets, not all jurisdictions follow the same standards. Unlike patents, trademarks, and copyrights, there is no federal law specifically protecting trade secrets.

Misappropriation claims can arise when a trade secret is wrongfully obtained, such as through corporate espionage or bribery. Under the UTSA, misappropriation occurs if the secret is acquired by improper means, or if it is disclosed or used without the owner's permission. Damages may include actual loss and unjust enrichment not covered by actual loss. In cases of willful or malicious misappropriation, double damages and attorney's fees may be awarded.

If you're not fortunate enough to stumble upon a multimillion-dollar secret recipe hidden in an antique shop, and it's not patented, you can attempt to reverse engineer it and use it immediately. However, if you're employed in a creative capacity, collaborating with others to develop a secret, and have agreed not to use trade secrets, the rights to the trade secret typically belong to your employer in most jurisdictions. Peter Taborsky's case in 1988 illustrates this point. While working in his university's chemical engineering lab, Taborsky discovered an effective method for treating sewage. The university demanded access to his notebooks containing the invention's secrets, leading to criminal charges for stealing trade secrets. Despite receiving a patent for his invention, Taborsky lost his case and faced imprisonment.

In Bill Waters' case, he likely doesn't need to worry about Dr. Pepper's owners suing him for misappropriation or pressing criminal charges for stealing trade secrets. Since he lawfully obtained the ledger book through a purchase in the open market, he is in the clear. Moreover, according to a company spokesman, the ingredient list under D Peppers Pepsin Bitters is probably an old remedy for a stomach ache rather than any version of the Dr. Pepper recipe. Even if Waters had accidentally stumbled upon the exact Dr. Pepper recipe, he could argue that the company did not take adequate steps to keep the secret, as a well-protected secret would never have been allowed out of the company's sight.

9.4.4 Trademarks

Take a glance at Figure showcasing "McDonald’s, One of the Most Recognized Trademarks in the World." Clearly, it's a McDonald’s restaurant, but can you pinpoint its location? Is it nestled in a mall, an airport, or perhaps in Trenton, Toronto, or Tokyo (or, as it happens, in Messestadt Riem, Germany)? Without additional context, such determinations may prove elusive. Yet, regardless of your global location, upon entering this McDonald’s, certain expectations prevail. Anticipate finding a Big Mac on the menu, maybe some Chicken McNuggets and french fries too. And not just any Big Mac, but one that tastes precisely as it does in your local McDonald’s. Your expectations might extend to a consistent level of service, a specific value proposition for your expenditure, a recognizable appearance in the uniforms and fixtures, or even a spotless restroom. Discovering that this seemingly familiar McDonald’s is, in fact, an imposter could be perplexing. The ultimate objective of trademark law is to avert such consumer confusion. To prohibit any other establishment from adopting the name McDonald’s or employing a logo resembling the iconic stylized “M,” McDonald’s secures trademarks for its name, logo, and various other facets of its brand. This section delves into the mechanics of how trademark law achieves this objective.

A trademark encompasses any identifier – be it a name, logo, motto, device, sound, color, or aesthetic – that signifies the origin of a specific product or service. The transition to a trademark occurs when a consumer associates it with a particular origin. For instance, a consumer purchasing a Diet Coke recognizes it as a carbonated beverage from the Coca-Cola Company. Conversely, if they were to buy a Diet Cola, no specific company comes to mind, leaving the beverage's origin ambiguous – it could be from Coca-Cola, Pepsi, or any number of other companies. The crux lies in the consumer's identification with a specific origin. If a consumer envisions a category of goods rather than a singular origin, it does not qualify as a trademark. Consider "aspirin" – a consumer associates it with a class of goods, lacking a specific origin, and thus, it is not a trademark. However, when a consumer hears "Bayer," a specific aspirin from a specific source comes to mind, thereby transforming "Bayer" into a trademark.

The Lanham Act, a federal law, stands as the guardian of trademarks. In contrast to copyrights and patents, trademarks enjoy an eternal existence, escaping the constitutional confines of a "limited time" restriction. The bedrock of trademark law is the prevention of consumer confusion, and the public interest is best served by allowing companies to retain their trademarks as long as consumers maintain a clear association between the trademark and its specific origin. Once this association dissipates, the trademark fades into nonexistence.

                                            Gucci in Hong Kong:

                                         

For those contemplating a career in marketing, a profound understanding of branding concepts is imperative. Marketing, fundamentally, revolves around the art and science of establishing connections with consumers, narrating an authentic story about products and services, and fulfilling their desires and needs. A brand becomes indispensable in achieving this objective, often resulting in remarkable profits. Consider the robustness of brands like Apple and iPhone, generating billions of dollars in profits. Luxury brands, acutely conscious of this dynamic, leverage their brand strength to command premium prices, exemplified by entities like Gucci, as illustrated by the Gucci Store in Hong Kong. Brands such as Rolex, Hermes, Rolls-Royce, and Bentley operate on similar principles, relying on their brand equity to justify elevated prices and margins. It's noteworthy that all these brands are trademarks—either registered or capable of being trademarked—united by the pivotal factor of consumer identification. Caution is advised, however, as "trademark" and "brand" are not interchangeable terms; not all trademarks qualify as brands.

What qualifies as a trademark? Unquestionably, words can be trademarked, and in the realm of trademarks, uniqueness holds significant value. Consequently, an coined or invented word stands out as the optimal trademark. A prime illustration of this principle is found in the genesis of Google. In 1997, Stanford graduate students Larry Page and Sergey Brin, in the process of naming their groundbreaking Internet search engine, ingeniously coined the term "Google." A playful riff on "googol," denoting 1 followed by 100 zeroes, the name encapsulated their mission to organize the vast expanse of information on the Internet.

However, even commonplace words can attain trademark status, provided they are unmistakably associated with a specific source. Take "Amazon," for instance—an appellation linked not only to the world's longest river but also to the renowned online retailer. The name has transitioned into a trademark because consumers now readily identify Amazon.com as the online retail giant. Similarly, the phrase "You're Fired" has transformed into a trademark when employed in a television program. Popularized by billionaire Donald Trump, the enduring recognition of this phrase makes it improbable for any other television show to incorporate it as a central theme.

Consider the scenario of attempting to trademark your own name. If your name happens to be Sam Smith, securing a trademark for it would likely pose a considerable challenge. However, if you were to name your business Sam Smith and diligently cultivate its growth over time, establishing a clear association between "Sam Smith" and your business in the minds of consumers, your name could acquire secondary meaning and become eligible for trademark protection. This is exemplified by trademarks like Sam Adams for beer, Ben & Jerry's for ice cream, and Ford for motor vehicles.

Upon obtaining a trademark, it is typically designated for a specific category of goods, and sometimes the same name can be employed across multiple categories. A notable example is the name Delta, serving as a trademark for both an airline and a line of faucets. Given the unlikely scenario of consumer confusion between an airline and a faucet brand, trademark law permits such dual registrations. Conversely, some brands wield such formidable strength that they could potentially impede registration for entirely unrelated goods. McDonald's exemplifies this robust brand presence. In 1988, when hotel chain Quality Inns sought to launch a budget motel line named "McSleep," McDonald's swiftly filed a trademark infringement lawsuit, contending that consumers might erroneously assume ownership of the hotel chain by McDonald's. The court sided with McDonald's, compelling Quality Inns to rebrand its chain as Sleep Inns.

Trademarks extend beyond a company's name or logo. Colors can be trademarked if they possess the strength to evoke consumer identification. Owens Corning, for instance, has trademarked the color pink for building insulation, compelling other insulation manufacturers to adopt distinct colors. Even sounds can receive trademark protection, as evidenced by MGM Studios' distinctive "lion's roar." The visual aesthetic known as trade dress, encompassing distinctive colors, materials, textures, and signage, can also be trademarked. Starbucks and T.G.I. Friday's, for instance, safeguard their unique trade dress, preventing unauthorized replication. Even a bottle shape, as seen in the case of OPI's Nail Polish Bottle, qualifies as trade dress, registered with the U.S. Patent and Trademark Office (USPTO). OPI actively pursues legal action against manufacturers employing a similar bottle design. Intriguingly, while certain fragrances like Old Spice or CK One possess distinctiveness, courts have been hesitant to grant trademark protection for specific smells. The reluctance arises from the potential chaos that could ensue if companies claimed trademark rights for common scents like vanilla or strawberry, potentially limiting consumer choices.

A trademark transcends the confines of merely signifying a name or logo for goods; it extends to services as well, denoted as a service mark when pertaining to service-based companies. Notably, Facebook is classified as a service mark. Beyond this, trademarks can serve as indicators of certification, attesting to the fulfillment of specific standards. An illustrative example is the Good Housekeeping Seal of Approval. For those delving into operations management, the International Organization for Standardization (ISO) introduces various standards, ranging from quality management (ISO 9000) to environmental quality (ISO 14000). Certification marks, such as the emblem of the Forest Stewardship Council (FSC) on paper products, or the labels "Organic" and "Fair Trade" on certain foods, signify adherence to established standards set by governmental or nongovernmental entities.

Moreover, marks can signify membership in an organization, exemplified by designations like the National Football League, Girl Scouts of America, Chartered Financial Analyst, or Realtor (as depicted in the figure figure below, the "Realtor" Certification Mark). These are collectively known as collective marks. It's crucial to note that the principles governing trademarks seamlessly apply to service marks, collective marks, and certification marks alike.

The scope of what can and cannot be trademarked is delineated by the Lanham Act, which, for public policy reasons, excludes certain categories from trademark registration. Naturally, trademarks will not be granted if they bear resemblance to or are identical to an already registered trademark. For entrepreneurs launching new ventures, it is prudent not only to check the availability of a domain name but also to ensure that the intended company name is not already trademarked by another entity.

There are explicit exclusions from trademark registration under the Lanham Act. These include trademarks that incorporate the U.S. flag, government symbols (such as the White House or Capitol buildings), or anything deemed immoral. Additionally, trademarks cannot be purely descriptive. For instance, while any restaurant is permitted to offer a "Kid's Meal," the term "Happy Meal" is exclusive to McDonald's. This prohibition on purely descriptive terms aims to foster distinctiveness and prevent generic or commonplace phrases from being monopolized as trademarks.

The issue of whether a region can be trademarked, known as a geographic indicator (GI), sparks controversy, especially in international trade relations. Terms like "Maine Lobster," "Napa Valley Wine," or "Florida Orange Juice" can hold commercial value by signaling the origin of a specific product, differentiating it from competitors in other regions. Currently, these designations are protected, and products bearing them must indeed originate from Maine, California, or Florida to avoid legal consequences under consumer protection statutes.

However, the challenge arises when consumers lose the association between the product and its region. For example, Champagne producers in France have rigorously protected the term "champagne," ensuring that only sparkling wine produced in the Champagne region can bear that name. Now, food producers, particularly in the European Union, are seeking similar international trademark protection for names like Feta, Parmesan, Gorgonzola, Asiago, and numerous others.

The longevity of a trademark is contingent on consumers maintaining the belief that the mark is linked to a specific producer or origin. If the mark evolves into a generic term for a class of goods, it succumbs to genericide, losing legal protection. Many everyday words originated as trademarks but have become generic over time, including furnace, aspirin, escalator, thermos, asphalt, zipper, soft soap, cellophane, lite beer, Q-tip, and yo-yo. To thwart genericide, trademark owners often invest substantial sums in educating consumers about proper trademark usage and prosecuting infringers.

Active measures are crucial for trademarks like "Kleenex," "Rollerblade," "Coke," and "Xerox" to avoid becoming generic terms. If these trademarks lose their distinctiveness, companies risk relinquishing control over the marks, allowing competitors and the public to use them generically. For instance, Xerox has taken substantial steps, including print advertisements, to emphasize the importance of correctly using its trademark, cautioning, "When you use 'Xerox' the way you use 'aspirin,' we get a headache."

Trademark infringement occurs when someone uses someone else’s mark, either completely or to a substantial degree, when marketing goods or services, without the permission of the mark’s owner. Obviously, making your own pair of jeans and slapping a “Levi’s” label on it, or making your own handbag and sewing a “Coach” label on it, constitutes trademark infringement. When Apple first released the iPhone, to its embarrassment it found out that “iPhone” was already a registered trademark belonging to Cisco, another company, for a phone used for placing phone calls over the Internet. To avoid trademark infringement liability, Apple had to pay Cisco an undisclosed sum to purchase the trademark. Ford found itself in a similar situation when it released a supercar called the “Ford GT.” Ford made a similar racing car in the 1960s called the “GT 40” but lost control of the trademark after production ceased. Unable to reach agreement with the current trademark owners, Ford settled for releasing the new car as simply the “GT.”

The law also permits trademark owners to sue infringers who use their marks to a substantial degree. For example, when Samsung announced its new smart phone, the Black Jack, the makers of the BlackBerry device sued for trademark infringement. When a software company released a product to eliminate unwanted e-mails called “Spam Arrest,” it was sued by Hormel, makers of Spam canned luncheon meat. When a small coffee shop in Syracuse, New York, opened as “Federal Espresso,” the shipping company FedEx filed a trademark infringement claim.

Even if a trademark owner doesn’t believe a similar use of its mark would lead to any consumer confusion, it can protect its trademark through a concept called dilution. Such was the case when an adult novelty store in Kentucky opened as “Victor’s Secret” (the owner’s name was Victor). The trademark owners of “Victoria’s Secret” filed a dilution suit in response. Traditionally, trademarks are intended to prevent consumer confusion. Dilution permits a trademark owner to stop usage of a similar word or phrase even if consumers aren’t confused. Under dilution concepts, the trademark owner only needs to show that its mark will be diluted or tarnished in some way.

Dilution remains a contentious issue in trademark law, particularly since the enactment of the Federal Trademark Dilution Act in 1995. Critics argued that this legislation, aimed at safeguarding "famous" trademarks, went too far in protecting trademarks, potentially harming the public and small businesses. Ambiguities in the Act, including a lack of clear definitions for "dilution" and the criteria for trademark owners to prevail in a lawsuit, fueled the controversy. The 2003 Supreme Court case, Moseley v. Secret Catalogue, brought some clarity to the matter. The Court determined that for a dilution case to succeed, a trademark owner must demonstrate actual economic damage resulting from the dilution, rather than relying on the "likelihood" of dilution. This high standard necessitates waiting for the diluting mark to enter the market and be used in commerce, coupled with the challenge of proving economic harm.

However, dissatisfied with the Supreme Court's ruling, corporations successfully lobbied for the Trademark Revision Dilution Act of 2006, overturning the Moseley case. Under this revision, owners of famous trademarks need only demonstrate a likelihood of dilution before initiating a dilution lawsuit.

Those accused of trademark infringement can deploy various defenses. One prominent defense involves asserting that no infringement occurred because the two marks are distinct enough to avoid consumer confusion. A notable example occurred in 2002 when Jeep sued General Motors for allegedly infringing on Jeep's trademark grill. GM's Hummer division had introduced the H2 with a similar seven-bar grill. A district court ruled in favor of GM, contending that the grills were dissimilar enough to preclude consumer confusion. Consider the Hummer H2 grill found below and the Jeep grill foundbelow perceive a potential for consumer confusion?

Dilution remains a contentious issue in trademark law, particularly since the enactment of the Federal Trademark Dilution Act in 1995. Critics argued that this legislation, aimed at safeguarding "famous" trademarks, went too far in protecting trademarks, potentially harming the public and small businesses. Ambiguities in the Act, including a lack of clear definitions for "dilution" and the criteria for trademark owners to prevail in a lawsuit, fueled the controversy. The 2003 Supreme Court case, Moseley v. Secret Catalogue, brought some clarity to the matter. The Court determined that for a dilution case to succeed, a trademark owner must demonstrate actual economic damage resulting from the dilution, rather than relying on the "likelihood" of dilution. This high standard necessitates waiting for the diluting mark to enter the market and be used in commerce, coupled with the challenge of proving economic harm.

However, dissatisfied with the Supreme Court's ruling, corporations successfully lobbied for the Trademark Revision Dilution Act of 2006, overturning the Moseley case. Under this revision, owners of famous trademarks need only demonstrate a likelihood of dilution before initiating a dilution lawsuit.

Those accused of trademark infringement can deploy various defenses. One prominent defense involves asserting that no infringement occurred because the two marks are distinct enough to avoid consumer confusion. A notable example occurred in 2002 when Jeep sued General Motors for allegedly infringing on Jeep's trademark grill. GM's Hummer division had introduced the H2 with a similar seven-bar grill. A district court ruled in favor of GM, contending that the grills were dissimilar enough to preclude consumer confusion. Consider the Hummer H2 grill and the Jeep grill found below. Do you perceive a potential for consumer confusion?

Another potent defense in trademark law is the concept of fair use. The Lanham Act explicitly prohibits the use of someone else's trademark when selling goods, often resulting in the blurring or covering of labels on items like laptop computers, telephones, soda cans, or food packaging in television shows and movies. However, fair use allows for the mention of a competitor's product to draw a comparison, a practice known as comparative advertising. For instance, Honda is within its rights to assert that its "Honda Accord is better than the Ford Taurus" in its advertising, even though both Ford and Taurus are trademarks owned by Ford Motor Company.

The First Amendment further recognizes fair use in the context of parody, comedy, or satire. Television comedy skits that mock or utilize company logos exemplify this form of fair use. A case in point is the Canadian nonprofit Adbusters, which, as part of its mission to advance a new social activist movement, engages in satire targeting corporations and consumer spending. This includes activities like sponsoring "Buy Nothing Day" as a countermeasure to the annual holiday spending season. The organization also indulges in parodying commercial messages, as illustrated by the ad shown below, which spoofs the well-known Absolut Vodka print ads. Despite this ad's trademark infringement, it qualifies as fair use due to the underlying social commentary and satire it conveys.

Trademark infringement takes an intriguing turn in the realm of the Internet, particularly concerning the utilization of domain names. Cybersquatting, or domain name squatting, occurs when a company registers a domain name containing a renowned trademark with the intention of selling it to the rightful owner at a substantial profit. This practice emerged in the early days of the Internet when domain name registration operated on a first-come, first-served basis. While registering a domain name for a generic term like "shoes.com" is permissible, incorporating a registered trademark into a domain name for the purpose of future sale constitutes cybersquatting. In 1999, the Anticybersquatting Consumer Protection Act was enacted to outlaw this practice, but it is only illegal if the domain name is registered with the intent to profit from its later sale. Registering a domain name in good faith is not considered illegal.

A notable case involved Canadian teenager Mike Rowe, who registered "mikerowesoft.com" in 2003. Microsoft initiated legal action against him, alleging cybersquatting and trademark infringement. Rowe defended himself by asserting that the website reflected his name and his interest in computer programming and software, serving a legitimate purpose. Despite negative publicity, Rowe and Microsoft settled the case, with Microsoft gaining control of the domain.

Another instance pertains to the Nissan.com domain. Uzi Nissan, a computer store owner, had owned the domain for years before Nissan Motors sought to acquire it. As the domain was registered in good faith, it did not amount to cybersquatting.

The First Amendment also serves as a defense against cybersquatting. Websites operated by consumer activists aiming to criticize or parody companies, such as "fordreallysucks.com," "fordlemon.com," or "peopleofwalmart.com," are not considered cybersquatting, despite their use of trademarks, as they fall under the protection of the First Amendment.

9.5.5 Copyright

The third pillar of intellectual property (IP) protection is copyright, which, like patents and trademarks, is safeguarded by federal law. While trade secrets shield confidential company information, patents guard processes and inventions, and trademarks preserve brands and identity, copyright is tailored to shield creativity. It stands as one of the two forms of IP explicitly mentioned in the Copyright Clause of the U.S. Constitution. Initially, copyright pertained primarily to songs, art, and written works. In the contemporary landscape, copyright extends to encompass a myriad of creative expressions, including digital forms.

Consider a task as simple as writing down four numbers between one and fifty in random sequence. Most individuals would produce distinct sequences, each representing a unique creative expression, and consequently, each sequence is copyrighted. Notably, the numbers themselves are not copyrighted; it is the exclusive sequence chosen, reflecting individual creativity. As computer software is essentially a compilation of binary code expressed in 1s and 0s, all software is automatically copyrighted. Conversely, sequential page numbers or listings in a phone directory lack creativity and, therefore, are not eligible for copyright protection.

Similarly, if a group of students were assigned a camera and tasked with photographing the same subject, each student's photograph would differ. The unique framing and perspective employed by each student constitute an expression of creativity, and therefore, each photograph is copyrighted. Finally, consider the notes taken during a course. Even if a group of students reads the same textbook and attends the same lecture, the resulting sets of notes would likely differ, each reflecting the student's unique understanding and creative expression, making each set of notes subject to copyright protection.

To qualify for copyright protection, a work must be both original (not copied) and fixed in a durable medium. This means that if you sing an original song in the shower and your roommate records it, the copyright for that song would belong to your roommate, not you. This requirement is essential to establish the original author of a work, as it would be nearly impossible to prove without a durable medium.

It's crucial to note that ideas, on their own, cannot be copyrighted. For example, if you have an idea for a novel about a boy wizard attending a boarding school, battling evil monsters, and growing up with friends, the idea itself is not subject to copyright protection. However, if you were to write a novel with that specific storyline, you would run the risk of violating the copyright of existing works, such as the Harry Potter series.

A similar copyright dispute emerged in 2006 following the success of Dan Brown's novel "The Da Vinci Code." Authors Michael Baigent and Richard Leigh claimed that the novel infringed on their copyrighted book, "Holy Blood Holy Grail," where they theorized that Jesus survived his crucifixion, married Mary Magdalene, and had children. The British judge overseeing the case dismissed the claims, asserting that the theory presented was "too general or too low a level of abstraction to be capable of protection by copyright law" (Baigent v. Random House Group).

A copyrighted work receives automatic protection upon its creation, distinguishing it from patents and trademarks that necessitate a costly and rigorous application process with the government. Authors are not obligated to submit their work for government approval, although it's advisable to include a "Copyright" notice or the © symbol on the work, though not legally required.

Copyright protection endures for seventy years after the author's death. In the case of multiple authors, the copyright persists for seventy years after the last surviving author's death. If a company, such as a publisher, owns the copyright, it expires ninety-five years from the date of publication or one hundred twenty years from the date of creation, whichever comes first. Once copyright expires, the work enters the public domain, as seen with the works of Shakespeare, Bach, and Beethoven.

Owners of copyrights may grant public access or use of a copyrighted work, whether freely or for a fee, through a copyright license, sometimes known as an End User License Agreement (EULA) for software. A license essentially represents permission from the copyright holder for specific uses, stipulated by the license terms. For instance, when you purchase a physical book, CD, or DVD, the copyright license allows private viewing, listening, or reading. However, it does not permit actions like showcasing the movie to a broad audience, modifying recorded music, or reproducing the book for distribution. These rights, encompassing reproduction, exhibition, and sale, are reserved by the copyright holder and are not part of the received license. Some advocate for the creation of a standard license for easy distribution, exemplified by the General Public License (GPL) for software and Creative Commons (CC) license for text and media. Despite license terms, owners maintain the right of first sale, meaning they can do as they please with the physical work, including reselling the original.

Digital media licenses can be highly restrictive, especially when employing measures like Digital Rights Management (DRM) to curtail ownership rights. DRM is utilized by copyright holders to limit the number of copies and devices to which a digital file can be transferred. In extreme cases, it empowers the copyright holder to delete the purchased work from the buyer's possession. A notable incident involved Amazon.com, which removed digital George Orwell books from Kindle devices owned by users without any prior notification see Amazons Kindle E reader below. This level of control is virtually impossible with physical forms of media. While Amazon.com was within its legal rights, the ensuing public outcry compelled the company to vow not to repeat such actions in the future.

Copyright infringement occurs when an individual uses a copyrighted work without permission or violates the terms of a copyright license. For instance, if a classmate takes your class notes without consent and makes photocopies, it constitutes copyright infringement. Repackaging someone else's work as your own is also a form of infringement, as witnessed in a recent incident involving J.K. Rowling, the author of the Harry Potter series. Steve Vander Ark, the operator of the Harry Potter Lexicon website, faced a lawsuit from Rowling when he announced plans to publish the site's contents in book format. The judge ruled in favor of Rowling, ordering the Lexicon to be rewritten with less material from the copyrighted work.

Furthermore, assisting someone in violating a copyright or creating a device facilitating copyright infringement is also considered infringement. This applies to websites like Napster and Grokster, designed to facilitate illegal music downloads, even if the sites themselves don't directly violate copyrights. Similarly, making digital media available for download for others, though not illegal downloading per se, still qualifies as contributory copyright infringement. The recording industry vigorously pursues such cases, evident in high-profile judgments like Jammie Thomas being ordered to pay $1.92 million for making songs available for download.

It's essential to note that devices with alternative legitimate uses, such as photocopiers, video/DVD burners, and peer-to-peer networks for research sharing, are not considered infringing devices.

Copyright law draws a crucial distinction between "fair" use and "infringing" use of a copyrighted work. Fair use encompasses copying a work for commentary, criticism, news reporting, teaching, or research. However, the mere use of a work in a news article or classroom setting doesn't automatically qualify as fair use. Courts evaluate four factors to determine the fairness of use. First, they consider the purpose and character of the use—whether it serves educational purposes or profit-making. Second, they assess the nature of the copyrighted work, determining if it constitutes the core intended protection of copyright. Third, they examine the amount and substantiality of the portion used, emphasizing the difference between fair use in distributing excerpts versus copying entire works. Finally, the courts weigh the effect of the use on the potential market for the copyrighted work. If deemed fair, the use should not significantly impact the market for the copyrighted work.

To address copyright infringement on the Internet, Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998. One provision shields Internet service providers from copyright infringement lawsuits if their networks are used for infringing purposes by others. Another provision protects websites, stating that if a user uploads infringing material and the website promptly removes it at the copyright holder's request, the website is not liable for infringement. For instance, if a user uploads a segment of a copyrighted song, movie, or TV show to YouTube, the clip may be removed at the copyright holder's request. Additionally, the DMCA prohibits attempts to disable copy protection devices. For example, DVD and Blu-ray Discs are copy-protected to prevent easy copying, and writing software to disable this protection, even if distributed for free, is a violation of the DMCA. Companies have employed the DMCA to prevent competitors from producing replacement inkjet cartridges, garage door openers, and other parts by arguing that these replacements circumvent copy protection devices.

The Digital Millennium in the Digital Age

The Digital Millennium Copyright Act (DMCA) is a U.S. federal law enacted in 1998 to address the challenges posed by copyright infringement in the digital age and to manage access controls to copyrighted materials in light of technological innovations. The DMCA has had a significant impact on how copyright is enforced, especially in the context of the internet and digital technologies.

Key provisions of the DMCA include:

Anti-Circumvention Measures: The DMCA criminalizes the circumvention of technological measures employed by copyright owners to protect their works. This includes technologies like encryption and digital rights management (DRM) that control access to copyrighted content.

Safe Harbors for Online Service Providers: The DMCA provides safe harbor protections for online service providers (OSPs) against copyright infringement liability arising from the actions of their users. OSPs, such as internet service providers (ISPs) and platforms hosting user-generated content, can avoid liability if they meet certain conditions, including the implementation of a notice-and-takedown system.

Notice-and-Takedown Procedures: Copyright owners can send a notice to OSPs alleging copyright infringement by their users. OSPs are then required to promptly remove or disable access to the allegedly infringing material. This process allows copyright owners to protect their rights without resorting to legal action immediately.

Online Copyright Infringement Liability Limitation: The DMCA limits the liability of OSPs for the infringing activities of their users, provided they comply with the prescribed conditions. This provision encourages OSPs to take down infringing content without facing legal repercussions, fostering a balance between copyright protection and the growth of online platforms.

Reverse Engineering Exemption: The DMCA includes exemptions for reverse engineering, allowing individuals to bypass access controls on software for the purpose of interoperability and ensuring the ability to use legally obtained software on various devices.

Triennial Rulemaking for Exemptions: The Librarian of Congress conducts a triennial rulemaking process to consider exemptions to the anti-circumvention provisions. This process allows for the temporary circumvention of access controls for specific purposes, such as security research or educational uses.

While the DMCA has played a crucial role in adapting copyright law to the digital era, it has also been subject to criticism. Some argue that the anti-circumvention provisions may hinder legitimate uses, such as fair use, and that the notice-and-takedown system can be abused to stifle free speech. Balancing the interests of copyright owners, technology innovators, and the public remains an ongoing challenge in the evolving landscape of digital copyright.

Online Copyright Infringement Liability Limitation Act

The Online Copyright Infringement Liability Limitation Act (OCILLA) is a provision of the Digital Millennium Copyright Act (DMCA) enacted in 1998 to address copyright concerns on the internet. OCILLA establishes a framework that shields online service providers from certain copyright infringement liabilities when their users engage in copyright infringement activities. The key purpose of OCILLA is to strike a balance between protecting intellectual property rights and fostering the development and growth of online services.

Under OCILLA, online service providers are granted certain legal immunities if they meet specific requirements outlined in the legislation. These requirements generally involve the implementation of mechanisms to address copyright infringement and cooperate with copyright holders. The main components of OCILLA include:

Designation of an Agent: Online service providers must designate an agent to receive notifications of claimed infringement. This agent's contact information is then registered with the U.S. Copyright Office.

Notice-and-Takedown Procedure: Copyright holders can submit notices to online service providers, informing them of alleged copyright infringement by their users. The notice must include specific information, such as identification of the copyrighted work and the allegedly infringing material. Upon receiving a valid notice, the online service provider is required to promptly remove or disable access to the infringing material.

Counter-Notification Process: OCILLA provides a counter-notification process for users who believe their content was mistakenly taken down. If a user submits a counter-notification, and the copyright holder does not file a lawsuit within a specified period, the online service provider is generally immune from liability and can restore the removed material.

No General Monitoring Requirement: OCILLA clarifies that online service providers are not obligated to actively monitor their platforms for infringing activity. Instead, they are expected to respond to notices of infringement in a timely and efficient manner.

OCILLA has been crucial in shaping the landscape of online copyright enforcement, providing a legal framework that encourages cooperation between copyright holders and online service providers. However, it has also faced criticism for potential misuse, with concerns about the ease with which copyright claims can be filed and the impact on free expression. The balance between protecting intellectual property rights and preserving the openness of the internet remains an ongoing challenge.

PRO-IP Act

The PRO-IP Act, officially known as the Prioritizing Resources and Organization for Intellectual Property Act of 2008, is a U.S. federal law aimed at enhancing the enforcement of intellectual property (IP) rights. Enacted on October 13, 2008, the PRO-IP Act primarily focuses on strengthening both civil and criminal penalties for intellectual property infringement, including trademarks.

Key provisions of the PRO-IP Act include:

Increased Penalties: The act significantly increased the statutory damages for copyright infringement, providing greater compensation to copyright holders in cases of infringement.

Civil and Criminal Forfeiture: The PRO-IP Act introduced provisions for civil and criminal forfeiture, allowing authorities to seize property associated with intellectual property crimes, such as counterfeit goods.

Establishment of IP Enforcement Coordinator: The act created the position of the Intellectual Property Enforcement Coordinator (IPEC) within the Executive Office of the President. The IPEC is responsible for coordinating and developing the government's strategy for the enforcement of intellectual property rights.

Coordination Among Federal Agencies: The PRO-IP Act aimed to improve coordination among various federal agencies involved in intellectual property enforcement, including the Department of Justice (DOJ), the U.S. Patent and Trademark Office (USPTO), and the Department of Homeland Security (DHS).

Civil Remedies for Trademark Counterfeiting: In addition to addressing copyright infringement, the PRO-IP Act provided for enhanced civil remedies for trademark counterfeiting. This includes increased damages for trademark infringement, aiming to deter counterfeiters and protect the rights of trademark owners.

IP Law Enforcement Training: The act authorized funding for training programs to enhance the skills of law enforcement personnel in addressing intellectual property crimes.

The PRO-IP Act was enacted with the intention of creating a more robust legal framework to combat intellectual property infringement, recognizing the economic impact of counterfeiting and piracy on industries and businesses. While the act received support for its efforts to strengthen IP protection, it also raised concerns about potential abuse of enforcement measures and their impact on individual liberties. Balancing the interests of IP rights holders with the protection of due process and fair use remains a complex challenge in intellectual property legislation.

Unit 4 Discussion

A Discussion Question should be answered in 2 to 3 paragraphs. and then respond to two of your peers with meaningful responses.

If you owned a trade secret, what methods would you employ to protect it? If you invented something that was patentable or the subject of a trade secret, what types of issues would you consider when deciding whether or not to apply for a patent?

It depends on what type of trade secret it is. If I invented something I would make sure that I had proper trademark and patent for the product. I would also make sure that only people working on the product knew about it. I could also create an (NDA)  non-disclosure agreement and make parties involved sign it as a legal means of keeping the secret private or having a legal means of action against if it got leaked to outside parties. Often when you are testing products or games online when they are in alpha testing you are required to sign a non-disclosure agreement. These types of contracts are also used for products or during company mergers or acquisitions. As for getting a patent they are often only granted for a limited time and it has to meet the proper criteria such as the invention new and hasn't been created before and that it's something that's real and can be created. 

Unit 4 Essay:

Through your readings under Unit 4 write an essay on a subject of interest. This would be something that was thought-provoking that you wanted to know more. 

Unit 3 Essay

 

              The topic which I think is a really interesting during this week is trade secrets but specifically the technology portion of it cause when it comes to programs that are built with source code reverse engineering is really easy if someone understands how a software works and can look at it and break it down and recreate it. I have some experience with reverse engineering but in terms of an online MMORPG called Ragnarok Online.

               By collecting client side packets and understanding the client functionality a group I worked with was able to create our own emulator of the software they used to run the game. Initially the creators of the game attempted to come after us for the emulator saying that we stole a leaked version of Aegis software that they used. And we were required to post the source code of our project so they could analyze it. Which then it was determined that it wasn’t the same software and they couldn’t prevent us from using it.

               During that time period as long as a subscription fee wasn’t being charged or costs for premium items there wasn’t anything to stop private servers of these types. But as of last year that has changed since the developer of these games has made bad choices such as banning European players from there servers and closing some popular versions of servers that players enjoyed. Which they sent out a message on Korean and English servers to report any servers that are found. Players of these private servers are also upset about the high amounts of hacking and botting taking place on official servers which is also a deterrent for them to go back and play on them.

                    Servers being sued such as Nova Ragnarok are being sued for gaining profits by selling unauthorized game items to users. How many get over that is by making custom items they can use which are not works of art that Gravity has created. And looking currently as of right now Nova Ragnarok is still running and has 2775 users online at 11:35pm which shows it didn’t kill off the server.

                    Of course these type of servers have always been more in a gray area since the client that is used to play the game is the same one that is used for Gravity often servers create their own maps and models to add their own style onto what is already created. You can’t get into legal trouble by playing one of these servers but every game out there on the End User License Agreement (EULA) states that you won’t play on private servers and if your caught a company can use that to ban your account in the official server. Often many private servers of games host outside of the US so that they don’t fall under US laws but even still you can run into legal trouble and that’s often why many of those servers don’t usually last.

Reverse engineering though even though it isn’t illegal copying a company’s assets can be this also applies to people that make emulators for game systems like switch and PlayStation. The emulator itself isn’t considered illegal it’s the games that are considered assets and are illegal to host or share.  Often too when it comes to software many companies that want to stop reverse engineering use encryptions in order to hide the source code and making cracking of software or reverse engineering of software more difficult to the more advanced experienced individuals.

 

Unit 4 Quiz:

Question 1

2 / 2 pts

Is a customer list an example of tangible personal property or intangible personal property?

  Tangible personal property 

x  Intangible personal property 

 

Question 2

2 / 2 pts

How does real property differ from personal property?

Your Answer:

Real property differs from personal property because real property is made up of land and things attached to the land which is called real-estate. Personal property is anything movable by a person and not recognized as a real property.

 

Question 3

2 / 2 pts

Rhonda gave the gas company permission to enter her property in order to maintain gas lines. Which of the following has she granted the gas company?

x  Easement 

  Partition 

  Lien 

  Covenant 

 

Question 4

2 / 2 pts

Which of the following is a special kind of tenancy shared between a married couple that includes a right of survivorship?

x  Tenancy by the entirety 

  Tenancy in common 

  Periodic tenancy 

  Joint tenancy with a right of survivorship. 

 

Question 5

2 / 2 pts

Which of the following is a type of personal property that has become affixed to real property?

  A curtain 

x  An awning 

  A bed 

  A junkyard of vehicles 

 

Question 6

2 / 2 pts

How are squatter's rights to property acquired?

Your Answer:

Squatter's rights is when the land sits idle and someone else takes over the land and uses it like its their own. There are certain criteria that must be maintained in order to make a claim of adverse possession such as:

They need to have continuous possession of the property.

Occupy the property themselves if they share it with others they cannot make an adverse possession claim.

Make it obvious they are occupying the property and also to the owner of the property.

 Treat the property as it is their own such as renovating and doing proper upkeep and maintenance.

 

Each State has different regulations and laws in regards to squatter's rights and requirements as well as how long you can squat in a property. 

 

Question 7

2 / 2 pts

Is a homestead an example of real property or personal property?

x  Real property 

  personal property 

 

Question 8

2 / 2 pts

Which of the following is movable tangible personal property, unlike land?

  Good will 

x  Chattel 

  A bank account 

  A trade secret 

 

Question 9

2 / 2 pts

Abigail's father deeded her property with the following wording: "To my daughter Abigail for however long her mother Pam lives". What is this conveyance called?

  Tenancy in common 

  Joint tenancy 

x  Life estate 

  Fee simple 

 

Question 10

2 / 2 pts

Which of the following is an example of intangible personal property?

  Collectibles 

x  Certificates of deposit 

  Fungibles 

  Supplies 

Introduction to ...

Final week's assignment is to do research and a PowerPoint.

Details, details, details...…

Unit 8 assignment is detailed so, this is an introduction to you due to the content that is needed.

Court cases are recorded to keep a history of the activity that took place through all proceedings. One reason is that other attorneys can benefit from the outcomes in similar cases they may be involved in. One famous case was "Plessy v. Ferguson". This case involved racial segregation laws. The U.S. Supreme Court, on May 18, 1896, by a seven-to-one majority because one justice did not participate, advanced the controversial “separate but equal” doctrine for assessing the constitutionality of racial segregation laws.

You will be researching for a court case from one of these categories, or one of your own choosing:

Property Law

Intellectual Property

Employment Law

Criminal Law

Trademark

Once you have decided on which case you want to research begin developing a PowerPoint.

Title Slide

Minimal of 12 content slides- talk about why you chose that case, talk about the case, talk about the outcome, talk about if you agreed with the case outcome, if so why, if not why not. Details, details, details...

Use graphics, use footnotes

The last slide is the reference slide with the URLs of your research.