traverselegal - January 17, 2012 - Internet Law, Internet Lawyer
Welcome to Internet Law Radio where we discuss the hottest topics in Internet law. If you are facing an Internet law issue, cyber law complaint, website or e-commerce issue, we have an Internet lawyer and website lawyer ready to help.
This is Brian Hall, an internet law lawyer with Traverse Legal, PLC, a law firm that represents companies who operate websites and have internet businesses throughout the United States. Today, I will be providing tips for those looking to set up and protect a website.
As an internet lawyer, I represent several companies related to their creation of a website, and even more companies relating to their ongoing use and protection of a website. There are tips that I give to my clients all the time and I think it’s beneficial to pass those along to you.
The first tip that I always tell someone is name is important. And what I mean by that is there are two things that really pertain to a website that deal with a name. The first is the domain name. The second is the actual service mark or trademark associated with the particular website. More often than not, they’re the same. However, sometimes it’s very difficult to get a domain name that matches a service mark and therefore there might be some variation in the domain name as it relates to the service mark.
Regardless, the best place to start if you have not yet set up your website is with a trademark availability assessment, sometimes known as a trademark clearance. This will allow an attorney to perform a search to make sure that the name you’re looking to use for website is actually clear and available and will not subject you to claims of trademark infringement.
In the event that it is clear and available, you should use a trademark attorney to actually file a trademark application with the United States Patent and Trademark Office (USPTO), which will hopefully lead to a trademark registration. That will give you protections and super benefits that those that do not have a registration would be entitled to.
So, once again, the first tip that I can give is focus on the name and do what’s necessary to protect it. In the event that you can get a registered mark, go for it. And make sure that you not only get the domain name that corresponds to your mark if available, but also variations of it, such as misspellings and typosquats, that will ultimately save you time and money in the future if others would try and cybersquat on your particular domain names.
Once you have the name, the next thing that you can do is obtain protection for what the content is on your website. So whereas the name is protected via a trademark or service mark, the content on your website, such as the graphics or the text itself or maybe even certain functionality, may be protected by using a copyright. While common law copyright provides some protection, which is why you see all the websites out there today having language at the bottom that says “copyright” with a certain date and the name of the company, and possibility even language such as “all rights reserved”, by filing a copyright application with the U.S. Copyright Office, you will gain, again, additional benefits that will provide you with not only leverage in the event of copyright infringement, but also entitlement to specific damages that are statutory under the law. A copyright attorney can help you identify what those particular items are that may be subject to copyright protection.
Now, it’s important to also recognize at this point that you want to make sure that you are, indeed, the owner of the copyright; and this tip is extremely important. It is, more often than not, that a website owner isn’t the one that actually created everything on the website. They go out and they find a web designer. They go out and they use a web host. They go out and they might find search engine optimizers. Whatever it might be, these third parties are typically independent contractors that perform work on behalf of the website owner. However, it’s critical that the website owner get written agreements with these independent contractors that provide the website owner with rights to the final work product. Copyright law has specific provisions known as work-for-hire that require that these be in writing in order to have the copyright ownership be with the website owner as opposed to the author or creator of the particular item or matter on the website. In the event you do not know whether or not something qualifies as work-for-hire under copyright law, it’s advisable to have language within your independent contractor agreement that assigns all of that matter to the website owner. These independent contractor agreements cannot be understated. They sometimes make the difference between you being able to claim complete ownership, and you being able to resolve a dispute between a web designer or somebody else who may be holding your website or part of it ransom in hopes of obtaining additional money from you for particular services. So, do not overlook the importance of having agreements in writing with those who that help you create your website.
And finally, make sure that your website is owned not only by you, but in particular, hopefully an entity that you are a part of. This provides you with benefits not only from a tax standpoint, but also from a personal liability standpoint, be it a limited liability company, an LLC, or some type of corporation, it’s better to have the entity own and operate the website, rather than you individually, if you can get to a point where financing is not as difficult to acquire and a budget isn’t something that you’re so ingrained and sticking to, that you are unable to actually provide yourself with those necessary corporate formalities.
So, these have been a list of tips that I hope will help you in developing your new website or in continuing to use your website. It’s never too late to get these things if you already have a website up and running. And, in fact, you’d be well served making sure that you are doing things properly within the legalities that are set forth by various laws in the United States and elsewhere, and also, in order to ensure that your consumers and those internet users that come to your website are getting the necessary education and information they need from agreements or other statements on your website.
So, once again, this has been Brian Hall offering his tips as to the best ways to protect a new or existing website.
You’ve been listening to Internet Law Radio. Whether you are facing a domain name, intellectual property or a complex litigation issue, our internet law lawyers have extensive knowledge and experience to answer your questions.