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Domain Names

■ Proper registration (whois.net). The domain owner should confirm that the registration information is accurate and should promptly make any changes if any of the information is not accurate at present or in the future. Additionally, the owner should confirm that the proper entity is listed as the owner of the domain name.

■ Trademark due diligence (USPTO.com). Actions for trademark infringement are the primary source of litigation involving websites. As such, any use of a third-party’s marks should be carefully reviewed. If any related marks are found, it may be advisable to consult with trademark counsel to determine the impact of these results.

■ Registration of likely related names. A full U.S. trademark search will provide names similar to the registered domain name and may reveal that some domain names were registered in bad faith by potential “cybersquatters.” The trademark owner may bring suit for trademark infringement for damages to compel a cybersquatter to transfer the domain name. The trademark owner may also seek resolution under the Uniform Dispute Resolution Policy (“UDRP”) of the Internet Corporation for Assigned Names and Numbers (“ICANN”) (www.icann.org).

■ If a domain name was registered in good faith by a third party, one may use the services of a domain broker (e.g., greatdomains.com) to negotiate and handle the details of acquiring the domain name.

Use of Third-Party Trademarks

■ The domain owner should obtain written permission from all parties prior to using their name or logo on its website. Written consent should also be obtained for any quotations from clients or other third parties, as well as the use of their names.

■ Many courts have held that the use of meta tags, white text on white background, and microscopic type of a competitor’s trademarks constitutes infringement. A meta tag is a special text that is inserted into a HTML document or web page and is not visible when the web page is displayed (unless the source code is viewed). Meta tags contain information relating to the website including keywords that describe the page’s content. To drive traffic to their sites, website owners and developers may use competitors’ trademarks in their meta tags.

Hyperlinks

■ If the third party’s trademark or logo is used as a hyperlink and it has a symbol used to indicate the mark is registered (’) or that trademark rights are claimed in it (™), those symbols should be used. The website terms and conditions should include an interstitial notice (a statement that all trademarks or service marks are the property of their respective owners).

■ A written linking agreement should appear on any site, setting out the parties’ respective rights and obligations.

■ Do not use another business’ name, trademarks, or logos improperly to imply the endorsement of that business. Where no endorsement is intended, include language in the website terms and conditions stating that neither the operator of the website nor the linked business intends any endorsement of the other because of the link.

■ Disclaimer of liability and control. A website’s terms and conditions should make clear that the operator has no control over the third party’s site and disclaim all liability for a visitor linking to the third party’s site via the hyperlink provided.

■ Include language in the website terms and conditions to the effect that the operator of the website makes no representations about linked sites or their owners, products, or services. Conversely, review the terms and conditions for each hyperlinked website to determine if it has any limitations or prohibitions on hyperlinking.

■ Framing. A web designer can create multiple, scrollable windows or frames that appear in the user’s browser. Designers can thereby use frames to incorporate entire third-party websites, or only portions of them, into their sites and surround them with their own advertising and promotions. Never engage in framing without the express permission of the operator of the framed site.

■ Deep linking. Written consent from a website owner should be obtained if the website wants to deep-link to another site. Consider including in the terms and conditions a restriction on allowing other sites to deep-link to the website.

Content

■ The domain owner must be the owner or licensee to each piece of content incorporated into the website. A careful review of the following documents should be made for their intellectual property or licensee provisions:

  • - The development agreement.
  • - Agreements with independent contractors who contributed to the development of the website.
  • - Employment agreements of employees who contributed to the website. Issues frequently arise when employees contribute content to a website outside the normal scope of their employment. This work is not “made for hire” under the Copyright Act and, therefore, is not owned by the employer.
  • - Any other agreements related to the website.

■ Ensure through written agreements with all third-party content providers that:

  • - The website has the right to use the content as intended.
  • - The third-party content providers have the right to convey such rights to the website owner without violating the copyrights or other rights of third parties who may have rights in or to the content (e.g., other authors, developers).

■ Photographs may violate an individual’s privacy and publicity rights. Each employee pictured should be required to execute a model release for the use of his or her image on the website.

 
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