Conducting Business Online?Some Common Issues And Answers ...

Are online contracts enforceable?

The first problem you need to address is whether your website has a terms and conditions of use policy and whether that policy is prominently displayed.? Let us assume that you do have such a policy.? Simply having a link to the policy at the bottom of your homepage might not be enough to enforce it.? You should have something called a ?click-wrap? agreement.? A click-wrap agreement asks the user whether he accepts or does not accept the terms before he can proceed to other areas of the website.? This is much more likely to be enforced against the user compared to simply listing the contents of the policy on a separate page.? Next, we have a specific quagmire: the actual terms of the policy.? The terms must be reasonable, and what determines reasonableness is something that should be discussed with an attorney.? Some examples of unreasonableness include placing barriers to prevent the user from reading the terms of the policy; forcing expensive commercial arbitration costs upon the user; and creating terms so one sided as to be inherently unfair.

If I sell products and services online, can I only be sued in Massachusetts?

This is a much more complicated question than it sounds.? First, note that the question asks about a commercial enterprise as opposed to an informational website.? The latter of the two would afford greater protection, and potentially, but not conclusively, lawsuits would probably only be inMassachusetts(please note that exceptions do exist).? Second, there are ways to insulate a commercial website from litigation outside its principal place of business.? A website operator could limit the types of services or products offered online; that is, it would be better to have the web surfer call an 800 number or to have the visitor fax an order form to your office as opposed to having an online ordering system.? This does not completely prevent anyone from suing you outside ofMassachusetts, but it does make it more difficult to bring the lawsuit out of state.? The reasons are based upon constitutional law and state long arm statutes, and a proper explanation is well beyond the scope of this blog.? The next step involves a terms of use policy.? In the terms of use policy, a website operator should include clauses that limit where the dispute can be held, in this case, the website wants to limit jurisdiction toMassachusetts.? Contact an attorney to help you properly include these sorts of clauses.

There are two last notes worth mentioning that are a bit off topic.? When operating a website, asset protection needs to be taken into account.? A website opens the door for liability in any state (or abroad).? Therefore, a website should be properly incorporated, general liability insurance should be considered, and a declaration of homestead should also be considered.? To help determine what might be required, legal counsel should be contacted for a legal website audit in order to determine what issues exist, what issues to avoid, what issues need to be corrected, and what issues might arise in the future.? By doing so, you will help protect yourself and your business.

What do I need to know about domain names and trademark law?

In short, a trademark is any word, name, symbol, design, or device or combination thereof used by a person to indicate the source of goods or services.? The same definition applies to domain names.? The Internet name must identify the source of the goods or services.? For example, when a person mentions the name Amazon.com, a consumer?s mental image is that of books (and other products).? Similarly, when someone sees the words ?Goodyear,? he thinks of tires.? It does not matter whether the trademark is in the actual world or in the virtual world, nearly the same legal principles apply.? However, the Internet does not afford more protection.? For example, if you combine a generic term?a common word that receives no trademark protection?with a domain indicator, the hybrid does not provide more protection because it is based in cyberspace.? To clarify, if you were to take the common word ?bonds? and combine it with the domain indicator ?.com? to produce www.bonds.com, this new hybrid receives no protection, since it does not signify the source of the goods or services.? The reason is that most financial services corporations offer bonds.? If the name were changed to CyberTrustFinancialBonds.com, then the name might signify a source and could possibly become eligible to be registered at the United States Patent and Trademark Office.

A competitor misspelled my domain name, created a website with the misspelled name, and he is drawing clients away from my website.? What can I do?

?Although many legal factors must be taken into consideration, the Anticybersquatting Consumer Protection Act generally provides the tools necessary to prevent this predatory behavior.? Consult legal counsel for advice in this area.

?Can I obtain the domain name of my competitor?

?No, do not register the domain name of a competitor.? Again, the Anti-Cybersquatting Consumer Protection Act prevents dilution, infringement, likelihood of confusion and more.? Furthermore, registering a name similar to your competitor?s name is not recommended.? For example, registering ?Exxonn.com? would be against the spirit of the act.

Copyright ? 2012 Kyle R. Guelcher ? All Rights Reserved. NOTICE: The materials contained in this website are provided for general information purposes only and do not constitute legal or other professional advice. The materials on this site may be considered advertising under the rules of the Supreme Judicial Court of Massachusetts. Viewing this website or blog, requesting information, or contact by an attorney or associated attorney of the firm does not create an attorney-client relationship. You are advised to speak with a licensed attorney in your jurisdiction.

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