Website Use

April 1, 2010
By: FitzGerald & Mulé LLP

Do you have a website for your business, or do you plan to create one soon? Have you thought about how your company's Internet presence raises a number of liability issues? Please consider the following issues, which may affect your use of a website.

1. Intellectual Property Rights:

Many business owners do not know that a website should be registered with the applicable intellectual property ("IP") offices to protect copyright interests, trademarks and patents. If the website is not registered, and the unique content you work so hard to create for your business is misappropriated (stolen) or reproduced by others for their gain, you may have no recourse.

At least the main, or "Home", page of a website should be registered with the United States Copyright Office in Washington, D.C. If you have a number of pages in the website, or internal links to company-owned information, those individual pages should also be registered.

Keep in mind that advertising or posting unique methods, pictures of products or inventions on a website may be risky. Businesses should register such any unique product or method with the United States Patent and Trademark Office (USPTO) in Washington, D.C.

Do your company's trademarks or trade secrets appear on the web pages? Are they protected? Trademarks can be the manner in which the business uses a particular color, shape or lettering, as well as a design or logo. If you believe you may have a trademark, or you have a trademark that is not yet registered, register that unique item or design with the USPTO before placing it on your website.

Trade secrets, such as unique methods your company has developed to do something that your competitors could misuse to take away your customers, are protected by state law but are generally not registered with the federal government. You should have contractual agreements and other documents, such as nondisclosure or confidentiality agreements in place with certain employees and third parties, to protect your business trade secrets.

Remember to update the IP registrations regularly, so that the copyright or other registration includes protection for new content. If very sensitive information is posted, the update should be submitted before the date it is posted on the website.

2. Third Party Rights:

What information do you collect information on cookies in connection with your business website? Will the information about visitors or potential customers only be gathered on a registration page? Will financial, as well as contact, information be gathered? Will the information be shared with anyone else, for example, PayPal or other businesses?

If the answers to any of these questions are "yes", you will need a tailored privacy policy for your company website and "terms and conditions of use" that address privacy and the use of information gathered, as well as other subjects.

Also, are images or likenesses of persons or things included on your website? If pictures or representations of your friends, customers or others will be in the graphic art, films, photographs or other visual media on the website, make sure that you have obtained express permission from the applicable persons to use the media, i.e., their property, for your business purposes. If you do not, the person may have a right not to be included on the website, or may have a right to obtain a share of royalties or profits the business enjoys after the picture or image is posted.

Also, each person whose likeness or photo is used, and each owner of an image or artistic expression included, in your business website must sign an express waiver of liability and give contractual permission for the image or representation to be used by your business.

3. Terms of Use:

In this age of technology, the content of a website may include information from completely foreign, unwanted sources. If you are not careful about providing terms of use, warnings, disclaimers and other conditions for access on the website, you or your business could be held liable for damage caused by the "outside" information.

Explain to your legal professional what the content will be, and what the website is intended to do, so they can assist you with liability protection. For example, websites that include blogging or chat rooms, that create users' communities, or that invite comments about topics freely, must include detailed terms of use, applicable warnings about the contents of those pages or areas of the site, and an express waiver of your liability for anything on the blogs or in comments.

4. Minors and Contractual Issues:

Privacy agreements on a website, or stated "terms and conditions" for using your website, require express agreement of the website visitor. However, under the laws of California and many other states, minors under the age of 18 cannot lawfully enter into a binding contract on their own. Therefore, those agreements are invalid or voidable, i.e., unenforceable, if the visitor who checks the "I agree" box is under 18. Parental consent may be necessary to comply with certain state and federal laws governing the online privacy protection of children.

We recommend that you talk to a legal professional about eliminating or protecting your business interests in your website content. Ask about how to register your intellectual property rights, take precautions to protect company information such as trade secrets on your website, prohibit or limit access by persons under 18 to certain information on your website, and protect the privacy of your business customers and website visitors interested in your business.

For more information, contact FitzGerald & Mulé LLP.

This article is intended for informational purposes only. Nothing herein should be construed to constitute legal advice. It is recommended that you seek legal counsel before making decisions regarding labor and employment matters.

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