KEEPING OUT OF TROUBLE WITH WEBSITES
It is easier to get in trouble with a website than you might think. What
follows, then, are a few tips to help keep your website clear of problems. A
word of caution: the law is changing in this area, and the specific facts of
each case make a huge difference.
Before you register a domain name,
be sure to check for existing trademark registrations.
If you don’t, and there is a pre-existing trademark, your domain name may be
taken away from you.
Check the California business-name list. (http://kepler.ss.ca.gov/list.html)
Conduct a search of
the federal trademark register.
Also do a Dialog or
similar search for state and business-name registries.
if you obtain a domain name, you may lose that name if you do not use
it for a real website. (A pure "under construction" page will not
suffice, so get some sort of content and contact information on the site.)
LINKING AND FRAMING
owners have been sued because their sites either a) linked to other Web pages
without appropriately identifying the target page or b) framed other sites so
that it seemed like someone else's Web page was part of the framing website.
problem is one of misidentification: the
offending website links or frames in such a way that the viewer doesn't realize
who really owns the target site. Similar to plagiarism, it's taking credit
either expressly or by implication for Web pages other than your own.
For example, linking
without attribution was the basis of the Ticketmaster Corp. v. Microsoft Corp.
case. There, Ticketmaster sued Microsoft for using links that took users
directly to the ticket-sales pages of Ticketmaster's site, circumventing
advertising and Ticketmaster's home page.
was the issues in Washington Post v. TotalNEWS, Inc. There the complaint alleged
that "Specifically, Defendants' website is designed to feature the content
of Plaintiffs' and others' websites, inserted within a "frame" on the
computer screen that includes Defendants' totalnews.com logo and URL as well as
advertising that Defendants have sold." Obviously, the defendants were
trying to make Washington Post content look like their own.
So what should you do?
Well, the most
conservative course is to either:
for every link or
link only to
other folks' pages where those pages themselves clearly identify
the owner and contain any advertising that the owner uses.
This approach is
not practical in most situations, of course. Where it's not, at least do the
When you insert
links in your Web page, make sure they identify
(correctly) the owner and name of the target page.
If you use
framing to pull up other folks' Web pages within your own, make sure you don't
imply in any way that the site within the frame is yours.
If a site has a linking
policy posted, be sure to follow it.
TRADEMARKS AND TRADE NAMES
Another set of
problems arises from using someone else's trademarks or trade names as part of
your website, either in the main text or in "metatags".
are key words and phrases used to help search engines categorize a website; they
are normally hidden from the user's view, although they are in fact part of the
website. When a user performs a Web search using one or more key words or
phrases, some search engines prepare a list of sites based on matches with the
metatags embedded in those sites. Some search engines also analyze the readable
text of websites in their matching functions.
Here the problems
have arisen where a website uses others' trademarks or trade names or a
competitor's trademarks or trade names to draw
traffic to its site. (This is not limited to officially registered
trademarks: Even if a name isn't registered, the owner may have rights in the
name simply from using it.)
Having said this,
there are some exceptions:
comparative advertising which names a competitor in a non-confusing and truthful
comparison does not constitute infringement.
addition, you can use another's trademark or trade name to identify
the source of the goods or services of which you are complaining or
discussing. In one famous case, a disgruntled former Bally Fitness customer was
permitted to keep "www.ballysucks.com" because he was using it to criticize
There is also an
exception if the words used are truthfully
descriptive. For example, there was no liability for a former Playboy
"Playmate of the Year" who built a website that used the plaintiff's
"Playmate of the Year", "Playmate of the Month" and
"Playboy" trademarks, both on the site itself and as metatags.
(Playboy Enterprises, Inc. v. Terri Welles.)
Even if you are
going to use another's trademarks or trade names in a permitted way, to avoid
trouble be sure to minimize their use, make it clear that those owners are not
endorsing your site, and be sure to use disclaimers.
means a statement along the following lines: "'Coca Cola' and the other
trademarks and trade names mentioned in this site are the property of their
respective owners. We have no affiliation with these companies and this website
is not endorsed by them.")
Also, if the owner
of the trademark uses the "R" within a circle or the superscript
"TM" symbols with the name, be
sure to include that whenever you use the trademark.
someone else's Web page does NOT contain a copyright notice does NOT mean that
the material is in the public domain. The only way you can be certain you are
safe is by either getting express permission
from the owner to use the material or finding a statement on that site that
allows you to use the material. (Many sites allow you to use their material for
non-commercial purposes only.)
is a "fair use" exception to the
copyright law that allows you to use PART of another’s person’s work (not
the entire work) without consent for purposes of review, comment, etc.,
particularly if the use is non-commercial. Basically, the more of the work that
is taken and the more commercial the use to which it is put, the less likely
that this exception applies. Because this can be complicated, talk to an
attorney before trying to use the "fair use" exception.
DEFAMATION AND PRIVACY
Remember that just
being on the Internet does not protect you against claims of libel. If you put
something defamatory on your website or
type it in a chat room or post it on a bulletin board you can be sued just the
same as if you were handling out leaflets.
There are, of
course, two classic defenses here: truth and
opinion. If you state things that are
clearly true or you clearly identify a statement as only your opinion or belief,
generally you can speak freely.
then, you may run into trouble if you disclose private
facts about someone else or you cast them in a false
light, even if not in a defamatory fashion (for example, deliberately
stating that a life-long Democrat is a neo-conservative Republican).
Because the entire
area relating to defamation is complex, it might be wise to run any statements
you are unsure of past an attorney before posting them.
If you host a bulletin
board or chat room on your website, you run the risk of potential
liability if others post obscenity, libelous remarks, material taken without
permission, links to sites that allow illegal free downloads of commercial
should make each user of a bulletin or chat room use a "click through" user
agreement where they consent not to post pornographic, defamatory or
infringing materials or links to sites conducting illegal activities. They
should also consent to your company not being liable for other users taking such
If you are a
service provider or are hosting a bulletin board or chat room, you can help
protect yourself against liability for copyright violations by others using your
site by registering under the Digital Millennium
Copyright Act. (See http://www.copyright.gov/onlinesp/.)
webmaster/mistress is your employee when your site is created or updated, you
own the work. That is NOT true with independent contractors: the contractor owns
the work unless there is a written agreement to
the contrary. (Without a written agreement, you have only a non-exclusive
license to use the work.)
agreements with independent contractors should not only state that you own the
work, they should also include an assignment
of ownership rights in the resulting product to your company. "Work for hire"
clauses alone may not be sufficient.
California many companies forego the "work
made for hire" language because California Labor Code Section 3351.5(c)
and California Unemployment Insurance Code Sections 621(d) and 686 treat anyone
working under such a clause as an employee for unemployment and disability
You may want to
give yourself a power of attorney to sign
copyright documents on behalf of the contractor as well.
fine to let a web contractor retain the rights to any underlying
software or scripts that operate your site, so long as you have an
irrevocable, royalty-free license to use them.
CHILDREN'S ONLINE PRIVACY PROTECTION ACT
Children's Online Privacy Protection Act ("COPPA")
requires websites to obtain a parent's permission before children
under 13 disclose information. (Children under 18 should not be permitted
to view information which is adult in nature.) Also note that children under 18
may not be bound by any agreements that you have. You ARE entitled to rely on a
user’s statement that he/she is over 18 unless you have some reason to believe
they are not telling the truth.
Although a copyright
notice is not required on a website, it is good practice, since it puts
others on notice that you are NOT putting that content in the public domain.
(This helps overcome any alleged "innocent infringer" defense.) A copyright
notice should be in the following form:
Bruce E. Methven. All Rights Reserved.
also use the © symbol in place of "Copyright", but do not use just (c). To place this on your website, you would place © in the html and the browser will display the © symbol. The
first year that the work was created must be included. (Designating a first year
later than the real one can invalidate copyright rights.) Subsequent years where
substantial changes were made can be added either as a range (2000-2003) or
singly (2000, 2002).
is a big issue. If you are selling goods/services over the Internet, you should
have your agreement state that lawsuits may only be brought in California.
Otherwise, the customer can sue you wherever the customer is located.
you are engaged in e-commerce, you should have a click-through
agreement on your website that your customers must use. It is not enough
to simply have your agreement on the site; if the customer is not required to
"click through" it, it may not be binding.
Implied warranties can arise from
statements, advertisements etc.
goods–including software–the law creates warranties of merchantability and
fitness for a particular purpose.
warranties must be expressly
disclaimed: State that there are no other warranties except as expressly set out
in the agreement, including any warranties of merchantability or fitness for a
LANGUAGE MUST BE CONSPICUOUS,
E.G., IN CAPITAL LETTERS O R BOLD TYPE. Otherwise consumers (and others) may not
be bound by it.
doesn’t hurt to use these disclaimers even if you are providing services
rather than goods.
Whether you are
providing goods or services over the Internet, you want your agreement to
contain limitations of liability and remedies.
Expressly limit the
remedy to replacement and/or repair
(or correction of the services) at your option.
State that in no
circumstances will you be liable for special
or consequential damages or lost profits (or lost data).
State that in no
case will the your liability exceed the amount paid
by the customer. This should be a separate paragraph from the disclaimers
Distributors should state in their contracts with customers that the only
warranty that applies is the manufacturer’s
warranty. (Distributors should try to obtain an agreement from the
manufacturer indemnifying and defending them against any litigation brought
regarding the product.)
Note that some
states have laws restricting limitations of liability and remedies, so a clause
should be included stating that if any portion of the agreement is found to be invalid,
then the narrowest segment possible is to be held to be excised from the
agreement, and the remainder continues in full force and effect.
Unlike in Europe,
outside of COPPA, health-care companies and financial-services companies, U.S.
federal and state laws do not generally (so far) require that a website that
On the other hand, consumers increasingly look for them.
Trade Commission ("FTC") has come down hard on companies that
violate their own policies.
also an excellent idea to state in your policy that it may be subject
to change by your posting an upcoming amendment to it on your site and
then proceeding with the change after 30 days except for users who affirmatively
The FTC does have
certain regulations that apply to all direct
marketers, including e-commerce websites. For more information, see http://www.ftc.gov/bcp/conline/pubs/buspubs/checklist.htm.
Never put anything
on your website that would matter if it were stolen.
Even though you may have the right to pursue the offending party (assuming you
can identify them), the cost may be prohibitive and the thief may be
Several insurance companies offer "cyber-liability"
policies. If you have an e-commerce site, talk to your insurance broker
about obtaining this coverage.
Lastly, with rare exceptions, you cannot offer stock via
your website: this constitutes "public advertising" and is forbidden.
Remember, the general rule is that if something is a legal issue in the real
world, it’s also a legal issue on the Internet.
Most of the
litigation has stemmed from "commercial" websites, meaning websites
that offer or promote the owner's goods or services. With these you need to be
more cautious, particularly with regard to competitors. Personal websites,
purely informational websites, websites devoted to a particular topic etc. tend
not to face as great a risk.
June 25, 2003