Does your website allow users to post content in any way (whether it be through a message board or even a simple comment or review), or do you link to other websites from yours? If so, you may be subject to liability for copyright infringement if the posted or linked content is infringing. Luckily, the Digital Millennium Copyright Act (the “DMCA”) creates safe harbors which could provide protection from such liability.
To qualify for the safe harbors, a website operator must satisfy a number of requirements, which may include the following:
Adopting, reasonably implementing, and informing subscribers and account holders of a policy for terminating repeat infringers’ use of the operator’s system or network under appropriate circumstances; and
Designating an agent to receive notices of alleged infringement. As of the end of last year, the U.S. Copyright Office (the “Office”) implemented a new electronic system for the designation of agents. The Office will no longer accept paper designations.
If you already comply with the DMCA safe harbors and previously filed a paper designation, you will need to submit a new, electronic designation by the end of the year to maintain your compliance with the DMCA safe harbor. Once filed electronically, the designation must be renewed every three years.
If you operate a website that links to other websites or allows users to post content but have not complied with the DMCA safe harbors, you may want to consider designating an agent with the Office and implementing the other required policies to gain the benefit of the DMCA safe harbors against copyright infringement claims.
For many years now, the arrival of October, which has been dubbed “Breast Cancer Awareness Month,” has been accompanied by an onslaught of pink products being sold to benefit various breast cancer charities. This practice of selling products or services to benefit a charity (often referred to as a “commercial co-venture”) has become increasingly popular among business owners—in addition to the philanthropic goal of donating to a worthy cause, the use of the charity’s name will also often result in an increase in sales for the company. Because these partnerships involve claims made to consumers regarding the recipient, and use, of the funds, many states have begun to regulate commercial co-ventures to ensure that accurate information is provided to consumers and that the money is ultimately used in the manner advertised.
Unfortunately, there is little uniformity among the regulations of the various states. For example, some states require a written contract with the charity specifying exactly how the donation will be calculated. In some cases, this contract must be filed with the state. Other requirements may include registration with the state and furnishing financial statements to the charity and/or the state. In each case, the regulations across the states differ with regard to whose responsibility (either the for-profit company or the non-profit company) it is to ensure that these requirements are satisfied. Adding to the complexity is the fact that many sales involve the internet and interstate commerce, so commercial co-venturers may unintentionally, and unknowingly, subject themselves to the regulations of multiple states.
Entering into a commercial co-venture is a noble, but complicated, endeavor. If you are considering entering into a commercial co-venture, you should take steps to ensure that you are complying with all applicable laws. Some best practices include:
entering into a written agreement that grants a license to use the charity’s name in connection with sales;
including an honest disclaimer of the amount being donated (including any minimums or maximums) in advertisements and on the product;
keeping a detailed accounting of sales during the promotion; and
consulting with a lawyer to confirm all state-specific requirements are met.
Protecting your company’s trademarks is important to grow your brand and prevent other companies from trading off your hard-earned goodwill. Below are a few things to keep in mind when creating and protecting trademarks:
Choosing a Trademark
There are a number considerations when choosing your company’s trademark. Among other things, you should:
make sure that your mark will not infringe on an existing mark. Your trademark could infringe another trademark because it is spelled the same, looks the same, or even sounds the same.
consider choosing a more “distinctive” mark to receive a higher level of protection.
make sure that the domain name is available for purchase. Even if the trademark has not been registered, the domain name may be in use by another company.
The best trademark protection comes from registering the mark. Where you register will depend on where the trademark is used.
If the trademark is used for goods sent across state lines or services that affect interstate commerce, a federally registered trademark would provide the most complete protection.
If the trademark will only be used within one state, state trademark registration may be a simpler (and cheaper) alternative to consider.
Keep in mind that just because your company is registered with your state’s Secretary of State or because you have registered a fictitious name does not mean your trademark is automatically registered.
Once a trademark application has been filed and the registration has been received, you must have a plan in place to police your brand to make sure that others are not infringing it. If someone is infringing your trademark, this could lead to a loss of business or could affect your company’s reputation and its ability to fully protect its trademark.
As your company evolves, so must your trademarks. As you create new products and services or expand the area of your business, you may want to create new trademarks or file existing trademarks in new jurisdictions.
These are just a handful of items to keep in mind for creating and protecting your company’s trademarks. Other forms of intellectual property protection for your company may also be available through copyright and trade secret protection. For more information on using intellectual property law to protect your brand, please give us a call or email.