Guest column: Respect intellectual property when creating your Web site
| Tuesday, Jun 30 2009 06:26 PM
Last Updated Tuesday, Jun 30 2009 07:33 PM
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Jeffrey A. Travis
Web sites are your first online impression to a client. This is why it is so important to make sure you craft your site intelligently, with foresight that will avoid unwelcome attention that can come from infringing on someone else’s intellectual property.
Be aware of the types of intellectual property
There are four types of intellectual property: patents, copyrights, trademarks and trade secrets.
Trademarks and copyrights are the two that usually get Web site owners into the most trouble.
Trademark infringement can be found if you use a competitor’s mark in a way that is likely to confuse a consumer as to the source of your goods/services with theirs. For copyrights, infringement occurs if you copy someone else’s work exactly or in a way that is substantially similar to the original.
As you develop your Web site, be strategic with development.
Too many times business owners sign agreements with Web site development companies and are burned.
When having someone develop your Web site:
• Clearly define the price of the development process;
• Create a staggered payment plan based on design and development goals;
• Define all the features before you begin (avoid “feature creep”);
• Have a date certain for development goals;
• Retain all rights to intellectual property resulting from the development of your Web site;
• Retain the ability to access all Web site source code;
• Clearly identify the source of all content.
Be cautious about content
You are responsible for the content on your site. If a developer uses someone else’s protected work on your Web site, you can be held liable. It is best if you have someone create original content for you. If this is not possible, make sure freely distributed works are used or modified for your use. Also, make sure that issues relating to who is responsible for any unlawful use are clearly addressed in the development agreement.
Have an appropriate “terms of service” and privacy policy. At a minimum, ensure you are taking advantage of all the safe harbor benefits of the Digital Millennium Copyright Act and other applicable statutes.
Be smart about promotion
You can promote your Web site a number of ways. Most ways are perfectly OK. However, some online advertisements have been found to be infringing. For example, using a competitor’s name in a Meta tag (keywords placed in the HTML of a Web page and transparent to a visitor) may be infringing, making the offender liable.
Another problem is using a competitor’s protected name in a “sponsored” advertisement. These are paid keywords through search engines that will cause your ad to appear on a search page.
These can potentially infringe because you are using another’s name to confuse a consumer into thinking they are getting your competitor’s product or service when they are, in fact, getting yours.
If you send e-mails as advertisements that are in violation of the CAN-SPAM Act, and you do not comply with its requirements and the more stringent requirements set out by California law, you could face a fine of $1,000 per unlawful e-mail.
Purchasing a domain name that is similar to your competitor’s to drive business to your Web site can also violate the Anti-Cybersquatting Consumer Protection Act in addition to trademark violations. For example, if you own ABC Hardware and purchase the www.loewse.com domain name (an obvious misspelling of the popular store), this could be construed as a violation of the ACCPA and other laws.
Be proactive in protecting assets
If you have a Web site and you promote your trade name on it, you have two types of intellectual property you want to protect: your trade name and the copyrighted content of your Web site. Protect both by using appropriate designations (™, ®, or ©) on all your original content. Register your domain name for your business and all obvious misspellings. Also recommended is to purchase domain names that are descriptors of your business.
An ounce of prevention is better than a pound of cure. Taking time to develop and promote your Web site the right way will allow you to get on with doing what you do best: engaging in your business and not worrying about others.
Jeffrey A. Travis is an associate at BORTON PETRINI, LLP. He is a registered patent attorney with a practice focusing on intellectual property and business matters.
