Any business that has a website or is contemplating taking its business online should take steps to protect the business’ “intellectual property” rights through trademarks, domain names and copyrights.
Obtaining those rights will also insulate the business against claims and lawsuits from others.
The foundation for any online business presence is the business name and the names of the products or services offered. These names are trademarks or service marks, and the most effective way to protect the right to use those marks is to obtain federal registration.
Federal registration of trademarks is particularly important now that companies are taking their business to the Internet. The old distinctions that could allow different companies in different regions to use the same or similar marks for the same or similar products are eroding.
Today, businesses can easily expand their advertising and customer base throughout the United States using the Internet. Federal registration gives the holder the priority to use the mark nationwide.
Federal registration of a trademark also makes it easier to stop others from using confusingly similar marks to compete with your business on the Internet. Just as important, federal registration is the best insurance against other businesses claiming you are using a mark they were using first.
Each Internet website has its own unique “domain name” address. Many businesses like to use a catchy or recognizable domain name to increase traffic on their website. For example, “toysrus.com” is the domain name Toys R’ Us uses for its website, and the domain name functions as a trademark in this context.
The best domain name strategy for any online business is to first confirm or obtain federal registration of its trademarks and then register domain names incorporating those trademarks. A search should be conducted to determine if there are any confusingly similar trademarks or domain names already in use by other businesses. If so, business owners should quickly contact legal counsel for advice in order to preserve their rights.
Obtaining a domain name is as simple as registering the desired name with Network Solutions Inc. and paying a relatively small fee. The ease of obtaining domain names and their importance in the online world often leads to clashes between trademark and domain name holders. Any business owner who becomes involved in a dispute over rights to use a domain name can attempt to resolve it by negotiation; by arbitration through Network Solutions Inc.; or if all else fails, through litigation.
The content of any business website is (or should be) original material, and it is protected under copyright law. Competitors are not allowed to copy some or all of another business’ website content without permission, and vice versa.
Business owners can register the content of your business’ website with the United States Copyright Office. This provides enhanced protections in the event someone unlawfully copies some or all of the website. If the work is registered before an infringement occurs, then statutory damages and recovery of attorney fees are available if a lawsuit is brought to stop the infringement. If the infringement occurs to register, a business will have to prove it was actually damaged by an infringement and recovery of attorney fees will not be available.
A word of caution: Internet law is developing and it is still not clear whether “linking” and “framing” websites of others businesses may constitute copyright infringement. If a link on a business website “frames” content of another site — leaving a home page as a surrounding border and bringing another’s content in without giving them credit — this could be infringement.
On the other hand, simply posting a link to another website and identifying the other website’s domain name should not constitute infringement. The prudent business, however, will want to consider obtaining a linking agreement with any website being linked to in order to avoid any potential problems.
