BREACH OF CONTRACT There are numerous other causes of action which can substitute or supplement a Breach of Contract action including, but not limited to, Intentional Interference with Contractual Relations, Fraud, Breach of Fiduciary Duty, Open Book Account, and Unfair Competition among many others. Contact the Law Office of Jason K. Feldman today for a free consultation.
Basic Elements of a Breach of Contract Action: A cause of action for breach of contract requires: (a) the contract; (b) plaintiff's performance or excuse for nonperformance; (c) defendant's breach; and (d) damage to plaintiff.
The Contract: A contract may be evidenced by a Written Contract, an Oral Contract, or an Implied Contract (that is a contract which arises from conduct, without express words of agreement).
Plaintiff's Performance of the Contract: The plaintiff cannot enforce the defendant's obligation unless the plaintiff has performed the conditions precedent imposed on him. (Civil Code 1439) In other words, the plaintiff must have performed its obligations under the contract or have a legal excuse as to why it did not.
Defendant's Breach: Breach is the allegation that one party broke the contract. The facts constituting the defendant's breach must be stated in a complaint for breach of contract with certainty.
Damages to the Plaintiff: The basic object of damages is compensation, and in the law of contracts the theory is that the party injured by breach should receive as nearly as possible the equivalent of the benefits of performance.
It is essential to establish a causal connection between the breach and the damages sought. (C.C. 3300) Punitive or exemplary damages are generally not available in contract actions. (C.C. 3294)
The injured party may recover for the profits or benefits which he would have obtained by performance if he can establish them with reasonable certainty. Such damages may include:
Giving Up Established Business. If the plaintiff gives up an established business or profession to enter into new activities by contract with the defendant, on breach the plaintiff may recover the profit or earnings he would have made if he had remained in his former business or profession.
Future Profits from Existing Business. Where past experience has demonstrated the success of the enterprise and provides a reasonably certain basis for the calculation of plaintiff's probable loss consequent upon the breach. (Hoag v. Jenan (1948) 86 C.A.2d 556, 564, 195 P.2d 451)
Plaintiff's expenditures. Another measure of contract damages is the amount of the plaintiff's expenditures, together with the reasonable value of his own services, in preparation and performance in reliance on the contract. This type of recovery is frequently sought or awarded where, because of uncertainty or difficulty of proof or other reason, the plaintiff is unable to establish a claim for lost profits.
Mental or Physical Suffering. Ordinarily, damages are not recoverable for mental suffering resulting from a breach of contract in the absence of physical injury. However, where the breach of contract causes physical suffering or illness, recovery is appropriate. "Whenever the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party, he may recover damages for physical suffering or illness proximately caused by its breach."[Westervelt v. McCullough (1924) 68 C.A. 198, 228 P. 734]
Interest. "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt." (C.C. 3287(a))
Liquidated Damages. (C.C. 3287(a)), "damages certain" provides for the recovery of damages where the amount of money due is an amount fixed by terms of contract.
Attorneys' Fees. Attorney fees may not be recovered where there is no provision in writing for the recovery of attorney fees in the event of a breach and suit. Such a provision is commonly found in promissory notes, conditional sales agreements, deeds of trust, mortgages, leases and building contracts.
INTELLECTUAL PROPERTY Intellectual property law includes trademarks and copyrights and seeks to protect your creative work and business branding, and to resolve related disputes.
Our services include the application for trademarks and copyrights as well as litigation concerning Copyright Infringement, Fair Use, Misappropriation, Libel, Slander, Privacy and other intellectual property disputes.
Copyrights: Copyrights protect rights of authorship in published and unpublished literary, dramatic, artistic, and musical works, and in software. Once you have registered your copyright with the United States Copyright Office, generally you are considered the “author” of the work and possess the exclusive right to do and to authorize others to do the following:
To reproduce the work in copies or phonorecords;
To prepare derivative works based upon the work;
To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
It is illegal for anyone to violate any of the author’s rights set forth above. These rights, however, are not unlimited in scope.
You need an experienced attorney to successfully guide you through the complicated world of federal copyright law. Call the Law Offices of Jason K. Feldman today for your free consultation.
Trademarks: A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
A service mark applies to services rather than goods but is otherwise identical to a trademark.
Under the guidelines of the United States Patent and Trademark Office (“USPTO”), trade names may also be registered. Generally, the name of a business or company is a trade name.
Depending on the specific facts and circumstances, domain names may or may not be used as a trademark or service mark and are subject to some special rules.
Trademark Search: Sometimes, the mark for which you seek protection may be already taken by another party. As such, a full search for the mark must be done prior to filing the application. In addition, the law has recently evolved quite rapidly concerning the ongoing debate between registration of a mark and domain name registration. A great deal of litigation in this arena has recently resulted from conflicting cases in different jurisdictions. A company may not have filed a federal application, but still own the rights to the mark within certain geographic areas through usage of the name for a considerable period of time prior to the date of your application.
Trademark Registration: Registration with the USPTO is evidence of ownership of the trademark should another party have a dispute concerning your use of the mark in commerce. Further, registration allows one access to the authority of the court and to seek damages. Registration can also be used as a basis for obtaining registration in foreign countries.
(SOURCE: United States Patent and Trademark Office)
Accordingly, if you intend to do business on a regional or national level, it is highly advisable that you seek to register and protect your intellectual property.
If you need to register your trademark or someone is violating your existing mark, contact the Law Office of Jason K. Feldman, PC today for your free consultation.
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