Protecting Your Website

BEVERLY A. BERNEMAN

Partner

"Doing business in a virtual marketplace starts with protecting every aspect of your website— from logos to site design to content."

ONLINE SECURITY
Protecting Your Website

Your website gives customers valuable information, a place to explore your products and services and, if you engage in e-commerce, a place to buy. Almost every website owner has e-mechanisms in place to protect against hacking and unwarranted intrusions. But you should also protect the creative and unique aspects of the site.

Case in Point:

Recently, Golan & Christie represented a client who sells logo-imprinted promotional products. The client spent years creating original design and content to draw in customers. A competitor seized the entire website, changed a word here and there, then uploaded the entire content to its own website. Because our client had taken appropriate protection measures, we were able to shut down the competitor’s site, recovering both damages and attorney’s fees. Here are some important steps to protect your own website:

Step 1: Protect Your Copyrights

Copyrights protect creative, non-utilitarian works fixed in a tangible means of expression. You own the copyrights in the original narratives, photos and graphics on your website. You don’t have to include a copyright notice on your website but, when you do, you give notice to others of your rights. Copyright notices must contain either the copyright symbol (©), the word “copyright” or its abbreviation (“copr.”) and the author’s name. The notice may also include the year of creation.

You do not have to register your website with the United States Copyright Office to create your rights, but registration has two major benefits. First, it gives the presumption that the copyright is valid. Second, if someone copies your website after you register it, you can seek statutory damages ($30,000.00 to $150,000.00 per infringement) and the recovery of your attorneys’ fees. Statutory damages come into play when the actual damages are minimal.

Step 2: Protect Your Trademarks

Trademarks (or “marks”) are source, service, or product identifiers. Trademarks include anything that distinguishes the user’s goods or services in the marketplace. As long as it fits within certain criteria, you can register a name, logo, tag line, color or even sound associated with your business.

Federal Registration. The benefits of registration with the United States Patent and Trademark Office include: (i) nationwide rights without actual use in all areas; (ii) constructive notice of rights in the mark; (iii) rights become incontestable after 5 years; and (iv) federal court jurisdiction for litigation. Federal registration of the mark allows the owner to use the (®)symbol.

State Registration. Many states have systems of registration for marks used only in the state. The state systems do not usually involve an examination process. The benefits of a state registration are limited but can help establish the use of marks that are not appropriate for Federal Registration.

As with copyrights, registering your trademark gives you a larger range of remedies in the event of infringement, such as punitive damages for willful infringement and attorney’s fees.

Step 3: Other Considerations

Terms of Use. Almost every website has Terms of Use. However, if you copied the terms from someone else’s website, you could be making yourself vulnerable to unintended consequences. Terms of Use are not “one size fits all”. For instance, certain disclaimers make sense in one type of business and destroy a customer’s trust in a different one. The failure to properly draft Terms of Use can work against you by failing to limit your liability or promising something that is not appropriate for your business.

Privacy Policy. Almost every website has a Privacy Policy. Privacy policies should be designed to protect the privacy of your customer while protecting you from promising too much. Certain industries, such as healthcare, require privacy by law. In some industries, custom and usage may dictate binding privacy policies unless they are disclaimed. An inappropriate Privacy Policy can expose you to breach of privacy claims or damage your credibility with your customers.

Click-through Agreements. E-commerce depends on Click-through Agreements. Historically, the number of customers who actually read them might be low. Even so, a proper Click-through Agreement should have all the attributes of a written contract, and shouldn’t be overbroad or burdensome to you or your customer because that could render it unenforceable.

Contractual Terms and Conditions. Many businesses post Contractual Terms and Conditions on their sites. Your written agreements and the posted Contractual Terms and Conditions should be in synch. If not, you risk losing the enforceability of your agreements. For instance, if you fail to establish the link between the written agreement and the posted Contractual Terms and Conditions, you could lose the ability to enforce one or the other. Or, if the written agreement and the posted Contractual Terms and Conditions contradict each other, they could create an ambiguity that would be interpreted against you.

Links. If you post links to other websites, be sure to do so the right way. For instance, some YouTube videos can be imbedded in your website and some cannot. If you imbed a video without permission, you could open yourself up to an infringement suit.

For more information or to have your website reviewed on a flat fee basis for recommendations, please contact Beverly A. Berneman, (312) 696-1221, baberneman@golanchristie.com