If you’re involved in Internet marketing in any way, at some point you’ll come across issues that require some basic level of legal awareness. Many people are pushing out new Web sites, blogs, social media pages, or just expressing opinions online. If you aren’t careful, you might find you crossed the line or didn’t adequately protect yourself.
As the Internet grows, situations arise that seem be gray areas. As the legal system systematically test these situations and make rulings they become clearer. You need to stay on top of your legal rights and learn how to constantly protect yourself online.
Let’s review the basics of trademark law and some new guidelines just announced from the Federal Trade Commission on the proper use of testimonials and endorsements. To help ensure this column is accurate and up to date, I consulted with a San Francisco firm, Kronenberger Burgoyne, that specializes in Internet law.
There’s a lot to consider when it comes to trademark law and branding your business and online marketing. Did you know you can actually tread on someone else’s trademark rights the moment you purchase a domain name? Trademarks are becoming more important in distinguishing your products and services from those of your competitors and vice versa.
It’s important for your customers to rely on the distinctive nature of your trademark when searching for your business and your products online and within search engines. If your competition uses your trademark in a blatant attempt to profit from online and search traffic, you should take action, but how? You can rely upon what is known as a “common law trademark,” which you acquire merely by using, exclusively, your trademark in commerce.
Over time, you develop rights in your common law trademark, which will allow you to file Internet domain name arbitration complaint if someone registers your trademark in a domain name, or to actually file a trademark infringement lawsuit. For additional protections, you can register your trademark with the U.S. Patent and Trademark Office.
Select a trademark that is unique and doesn’t simply describe the goods or services you offer. The more unique the trademark, the stronger it is.
Use a trademark symbol (™) next to your trademark on your Web page, and state at the bottom of your page that, “[insert trademark” is a trademark of [insert your company name”.”
You should also monitor the Web for other people using your trademark, and send cease and desist letters out to infringers. If you don’t protect your trademark, you could lose rights in it.
One way to increase the strength of your trademark is to file an application to register your trademark with the U.S. Patent and Trademark Office. Bear in mind that it takes six months to one year to get most marks registered.
After you’ve registered your Internet trademark, you’re entitled to certain rights above and beyond the rights that you have in a common law trademark.
For example, a registration of your mark creates a presumption of the validity of your mark. Additionally, a registration creates constructive notice on the part of infringers that you own the trademark. After your trademark has been registered for five years, you’re allowed to file an affidavit with the U.S. Patent and Trademark Office that protects you even further and makes your trademark incontestable.
Before filing for a trademark registration, conduct a nationwide trademark clearance search to see if you’re stepping on the toes of other brands and their trademarks. This isn’t necessarily a difficult or costly process. It’s good insurance that will help you demonstrate that any infringement caused by your use of your trademark wasn’t willful or intentional.
When it comes to registering a mark, do-it-yourselfers can look to Web sites like Legalzoom.com. However, if you know that you may have to use the trademark registration in litigation in the future, consult a trademark attorney to file your application for you so that you pick the right category of use for your trademark and draft the application in such a way to increase the likelihood of the USPTO allowing the trademark to register.
If you’re doing business internationally, you can register your mark with the USPTO under a Madrid Protocol designation, which gives you protection in many countries around the world without having to actually file applications in all of these foreign jurisdictions.
New FTC Guide for Endorsements and Testimonials
For those engaging in affiliate marketing, you should be aware that the FTC has recently issued new guidelines on the use of endorsement. In a nutshell, endorsers must explain what the average consumer will expect from the product — the phrase “results not typical” can’t be used any longer, unless there is an explanation of what the typical results are.
Also, all “material connections” between the advertiser and endorser must be disclosed; most importantly, endorsers (those who run blogs, for example) who receive a free product that they later endorse must disclose that they received the free product.
Next week: we’ll review copyrights, Web agreements, and domain name issues. Please share any words of wisdom or lessons on Internet law that you might have learned in the comments below.