Intelligent Ways to  Provide Online Content

Corrective Vision on the Internet

The laws involving business activities on the Internet are still evolving. But at least there is some semblance of order in cyberspace thanks to the Anti-Cybersquatting Consumer Protection Act.     This law is designed to prevent cybersquatters from wrongfully capitalizing on the trademark of other companies or using “bad faith.” For instance, one business might capture the domain name of a well-known company and force it to pay a large sum of money to obtain its own name, or otherwise profit illegally from its use. In one case, a cybersquatter created pop-up ads on the Web site of a competitor.     The facts: The owner of the Web site, 1800contacts.com, was a firm specializing in the production of contact lenses. It sought to enjoin the actions of one of its competitors and the competitor’s software company, Vision Direct and WhenU.com. Without the permission or knowledge of 1800 Contacts, pop-up ads for Vision Direct would appear when visitors accessed its Web site.     A preliminary injunction was granted against Direct Vision and WhenU.com. Based on the facts of the case, 1800 Contacts was able to establish the likelihood of a trademark infringement and a claim under the Anti-Cybersquatting Act. The pop-up ads could confuse consumers into thinking the companies were associated. Result: The facts supported a finding of bad faith on the part of the competitor (1-800 Contacts, Inc. v. WhenU.com, 2003 WL 22999270, SDNY)       Under the Anti-Cybersquatting Act, victims who prevail may be entitled to monetary damages, as well as an injunction against the cybersquatter. In certain cases, the wronged company is awarded attorneys’ fees. However, monetary damages can only be recovered for illegal activities after November 29, 1999.

 Operate under the assumption that outside content is protected under copyright or trademark law unless you have specific knowledge that it is not. Despite the perception of some people, you are not free to use another party’s work — online or offline — without express permission.

 Read the fine print on clip art and shareware agreements. Typically, you can’t simply reproduce artwork, photos and similar materials on your Web site without paying the original provider.

 Be careful about “linking” and “framing.”  In particular, many businesses do not approve of links or frames that bypass their home pages, where they advertise their own services or products. Not only does this create a business disadvantage, it can create the false image that there is a connection between the two companies.

There can also be copyright infringement issues because inside pages of a Web site are essentially copied when linking and framing.

 Post disclaimers when appropriate. This provision cancels all warranties and guarantees as to the accuracy of information and suitability of services offered on the Web site or in newsletters.

For instance, you might disclaim any connection with links or Web sites you have referenced as part of your presentation. Although this is not a complete solution if you have, in fact, violated trademark and copyright law, it may serve to mitigate damages.

The three most important aspects of online publishing are permission, permission, permission. When in doubt, contact the copyright or trademark owner for reproduction purposes. Use a healthy dose of common sense for “fair use” of materials on your Web site and in e-mail newsletters. Finally, seek legal assistance because these are only a few of the legal issues involved in online publishing.