Internet IP

The Internet has become an integral part of everyday life. In turn, as the Internet has evolved, a variety of new legal issues have arisen, many of which involve Intellectual Property (“IP”) rights. For example, disputes often arise over who has the right to own a domain name. Other common types of Internet-related IP issues involve advertising and other content found on corporate websites, personal websites, social media sites, and on “apps” for mobile devices. But, many clients overlook that Internet IP counseling should start with their own websites and mobile applications.

Website/App Creation

Prior to launching a website or app, there are many Internet IP considerations that may warrant legal analysis. First and foremost, development agreements are usually appropriate to ensure full acquisition of all IP rights from the programmers and content contributors. Additionally, clearances may be necessary, ranging from the selection of a Trademark and domain name to the inclusion of third-party photographs. There also may be considerations about the patentability of certain functionality, including non-infringement considerations. Even the presentation of one’s own brands and images may call for a review of the client’s IP portfolio and inclusion of proper legal notices. If the site/app has already been launched, however, many of these issues can be addressed after the fact.

Beyond the appearance and utility of a site/app, it may be advisable to include Terms of Service, a Privacy Policy, and other agreements. A Terms of Service agreement is, in effect, a contract entered into with the users to set the metes and bounds of the relationship, the manner of use, shipment terms, dispute resolution mechanisms, restrictions on the IP, etc. Privacy Policy agreements govern the way information is collected and utilized in compliance with data privacy regulations. Other forms of agreements might cover specific licensing terms and a host of other IP issues.

Domain Name Disputes

There are various rules governing the use and registration of domain names, which include standard Trademark law as well as terms and conditions imposed by the Internet Corporation for Assigned Names and Numbers (“ICANN”). One of the most common areas of conflict involving domain names is the practice of cybersquatting, i.e. “bad faith” purchasing of a domain name that is identical or otherwise similar to a pre-existing Trademark for the purpose of unfair profit or advantage. Each case is unique, and not all cases that initially appear wrongful will ultimately qualify as actionable cybersquatting. There are two main procedures for addressing unauthorized, bad faith registration of a domain name. The first is a cybersquatting lawsuit under the Anti-cybersquatting Consumer Protection Act (“ACPA”), which is somewhat complex but can provide substantial remedies including damages and attorney fees. The second is a Uniform Domain-Name Dispute-Resolution Policy (“UDRP”), which is an arbitration before the Internet governing bodies that focuses on registration and ownership rights. Other legal remedies may be available. Choosing the best course of action, whether as the complainant or defendant, should be guided by experienced attorneys to advise on the costs, risks, benefits, and limitations.

Brand Protection Against Trademark Infringement and Counterfeits

Just as the Internet has provided a new means of presenting one’s brand to large numbers of consumers, it has also made trademark infringement, counterfeit sales, and false advertising easier to accomplish on a wider scale than ever. Accordingly, brand enforcement against unauthorized online activity includes a variety of special considerations, and it can involve special procedures such as utilizing certain channels directly offered by service providers, as a first option, rather than the courts.

Unauthorized Use of Content

Given the multitude of creative works available online, including photographs, graphics, writings, sound recording, databases, non-fungible tokens (“NFTs”), and so forth, which are especially prevalent with interactive online platforms, legal issues can arise over the IP rights to such content, such as permissions to access, permissions to display, ownership rights, etc. In this context, IP implications can be impacted by Patent, Trademark, and Copyright statutes, the Digital Millennium Copyright Act(“DMCA”), contract law, and other remedies.

To learn more about Internet IP, please contact the Firm by email or telephone. We look forward to the opportunity to be of service.