Intellectual property claims have become common on the Internet. Such claims can include Web Site Development Issues; Domain Name Disputes; Trademark Issues; and Web Page Linking and Legal Liabilities.
When creating a website, the following issues may arise:
Copyright infringement can occur when creating a web site if the content of the website violates one of the six exclusive rights given to copyright owners under the Copyright Act:
- To reproduce the copyrighted work in copies or phonorecords;
- To prepare derivative works based upon the copyrighted work;
- To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Domain Name Issues
Domain names function as the address for a website, and disputes over domain names have become more common. It is a common mistake by website designers and developers to consider the domain name registration as “superior” to a trademark registration, when in fact it is not. Before selecting, obtaining, protecting and/or reclaiming a domain name, it may be wise to perform a trademark search to verify that the chosen domain name is available for Federal Trademark Registration, thus reducing the probability of it infringing on another party’s trademark rights.
Websites can contain descriptions of products or services. Website designers and developers must be aware of potential trademark issues arising from the use of a word, image, or slogan designed to identify the goods or services of a third party. The terms, “confusingly similar” or “likelihood of confusion” both refer to the standard required to prove infringement of a trademark. Specifically, if the relevant consuming public will likely be confused or mistaken about the source of a product or service sold using the mark in question, then likelihood of confusion exists, and the mark has been infringed.