Intellectual Property Internet   E-Commerce Agreements We have extensive experience in drafting domestic and international agreements that often are uniquely adapted to the online environment. These agreements include co-branding trademark license agreements, co-location agreements and Internet service provider and application service provider agreements, and web site hosting and development agreements. Other such agreements involve e-commerce registry, e-commerce escrow, strategic alliances, cooperative online marketing issues, content licensing, web site terms and conditions, privacy statements and web site use and trademark use guidelines. In licensing technology online, many of the same issues related to more traditional licensing apply. Issues peculiar to the Internet that any business moving online should consider include: what constitutes valid electronic signatures in global and national commerce; how to avoid subjecting the web site to personal jurisdiction worldwide; and web site use policies and privacy policies.   Online Privacy and Privacy Statements In the United States alone, there is perhaps no issue more controversial than privacy, particularly as it relates to e-commerce and the Internet. The number of new legislative initiatives addressing privacy issues grows with each year. For example: Does your site cater to kids? If your web site or online service is directed to or collects information from children under 13, you may be required to comply with The Childrens Online Privacy Protection Act (COPPA). Might you be viewed as a financial institution? If so, you may fall within the scope of the Gramm-Leach-Bliley Act (GLBA). This act protects the security and confidentiality of the nonpublic, personal information of consumers. Even if a web site falls outside the scope of COPPA and GLBA, its owner should be aware of privacy rights, since government agencies and courts are also applying old laws to new technology to protect personal privacy. Individual states and class-action plaintiffs also have filed actions to stop the use of web bugs and undisclosed cookies under the Computer Fraud and Abuse Act; the Electronic Communications Privacy Act; and common law theories, including invasion of privacy, unjust enrichment, fraudulent business practices, trespass, violation of state consumer protection and deceptive practices acts. Finally, because there are no geographic boundaries online, the privacy laws of other countries must be considered as well. For example, the European Union has imposed strict privacy requirements and penalties. However, U.S. companies in compliance with U.S. law can take advantage of the Safe Harbor provisions of the EU Privacy Directive.   Updating Your Privacy Statements We can assist you in complying with the latest changes in the privacy laws while taking advantage of the increasing sophistication in marketing that new technologies are enabling. If your privacy policy has not been reviewed recently or fails to provide customers with notice, choice, security, access and recourse, it probably should be updated. Notice. An online business should provide its web site visitors and customers with notice of what data it is collecting, and how and to whom it is disseminating the data. Choice. An online business also should provide its web site visitors and customers with the ability to choose whether the company may use or transfer the personal information collected. Security. Transmissions concerning the collected data should be secure. Access. Web site visitors and customers from whom data is collected should generally have a means of correcting, amending, or deleting the personal information collected. Recourse. Web site visitors and customers from whom data is collected should be provided with a means of ensuring a business has complied with its privacy policy, and an avenue of recourse in the event it does not.   Internet Domain Name Issues Registering your domain name is the first step. How many variations of your domain should you register? What about registering with other generic level domains or country codes? Canceling a conflicting domain name. Domain name basics - what are domain names? Domain names are the alphanumeric addresses that relate to a numeric string, such as 104.46.120.22, known as an Internet Protocol number. Each computer is assigned an Internet Protocol number. However, to make these numbers easier to remember, the domain name system was created. Thus, domain names serve as a directional address, identifying the address of a particular computer on the Internet. What parts of a domain name can be registered? Domain names consist of two levels, each separated by a period or dot. Top level domains (TLDs) are identified by their Internet zone designation, such as the familiar generic TLDs like .com, .org, and .net, or by the less familiar country code, such as .de (Germany), .co.uk (United Kingdom), .ca (Canada) and so forth. The generic TLDs are located to the right of the dot. Secondary TLDs are located to the immediate left of the dot. It is these secondary TLDs that can be registered. Where and how can a domain name be registered? The domain name system is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN has accredited approximately 120 registrars from which one can or will be able to obtain a secondary TLD for the .com, .net and .org generic TLDs. In addition, there are approximately 240 registrars each accredited to assign country code TLDs. Within many countries, it is possible also to register subdomains. For example, in the United Kingdom, .co.uk is reserved for United Kingdom commercial use, .ac.uk. is for academic use, and so on. Thus, there are over 400 distinct domain registration possibilities. In addition to these, ICANN has adopted seven new generic TLDs: aero, .biz, .coop, .info, .museum, .name, and .pro. Is it possible to dispute the assignment of a domain name to someone else or require that a domain name be reassigned to you? In the United States and in most countries, the courts and the trademark laws in each country are available to parties and trademark owners seeking to register or who claim rights in a specific domain name. However, court cases are usually costly and slow to reach final resolution. For instances involving abusive domain registrations, there is an alternative to filing a court action. Each of the ICANN accredited registrars for the generic TLDs are required to have all registrants submit to ICANNs Uniform Dispute Resolution Policy (the UDRP). The UDRP is intended to provide a relatively speedy (three to four months) and inexpensive (usually less than $10,000) system for remedying abusive domain name registrations. Some examples of abusive domain registrations include the registrants offer to sell the domain to the trademark owner for an inflated price, non-use of the domain for an extended period of time, using the domain name to show affiliation or trade off the goodwill of the trademark owner, a pattern of registrant registering domain names consisting of the marks or names belonging to others not affiliated with the registrant, and registering the trademark owners name while or after working for the trademark owner. Obviously, there may be many other situations where bad faith can be shown. However, if the domain name registrant is making good-faith use of the domain, a UDRP proceeding will not likely be successful. So, for example, the Ford Modeling Agency could not likely wrestle the www.ford.com domain name from Ford Motor Company, or vice versa. The first to register will be able to retain the ford.com domain name. What tactics exist for securing exclusive rights to a domain name? Because the domain name registration system for all TLDs is on a first-come, first-served basis, and because of the difficulty of establishing bad faith under the UDRP and the cost of bringing a UDRP proceeding or a trademark infringement claim against a domain name registrant, some companies have chosen to embark on ambitious domain name registration campaigns. The Intel Corporation estimates that it has acquired several thousand domains relating to its PENTIUM integrated circuit chips. Obviously, this approach involves considerable expense. This approach involves the possible registration of the following domain names (for a fictional business called THE BIG STORE): Register all secondary TLDs involving BIGSTORE and THEBIGSTORE with each of the .com, .net and .org generic TLDs. Specifically, consider registering the .com, .net, and .org generic TLDs with each the following basic forms of THE BIG STORE (total possible registrations = 18): THE-BIGSTORE THEBIGSTORE BIGSTORE THE-BIG STORE BIG-STORE THEBIG-STORE Consider registering common misspellings of your trademark Once the newly approved generic TLDs are available, these same secondary TLDs could be registered with those TLDs (total registrations possible = 10 per generic TLD). Other important trademarks, such as the BIG-Formative marks (i.e. BIGSHOP.COM), slogan marks, or nick names (i.e., TBS.COM), combined with each of the current gTLDs, .com, .net, and .org., or anticipated new gTLDs. Register the secondary TLDs involving other trademarks, such as BIG-Formative marks, nick-names, and slogans (i.e., TBS) with each of the .com, .net and .org generic TLDs or other newly approved generic TLDs. Consider additional defensive registrations, such as THEBIGSTORESUCKS.COM, to avoid complaint sites that can be difficult, if not impossible, to shut down. Consider whether any additional country code top level domains (ccTLDs) should be acquired for its more important marks, either because expansion may extend into that country (i.e., THEBIGSTORE.CA, for Canada), the ccTLD corresponds to the nature of the business (i.e., THEBIGSTORE.TV), or for other defensive reasons.   Linking, Framing, and Metatags When is it permissible to link to third party materials? Under what circumstances can a third partys trademarks be included in your site metatags? Linking. Generally, it is permissible to include a hypertext link to the homepage of a third party web site. The link should include no more than is necessary to identify the owner of the linked-to web site and to allow connection to the web site home page. Including additional third-party proprietary information, such as a trademark or logo design, could result in claims for trademark infringement, false advertising and unfair competition. Web site developers and creators should make sure that links are to the home page and not deep-linked to an internal page. Framing. It is usually not permissible to lift content from a third party and frame that content within your site, without first obtaining the permission from the third party. Framing is frowned upon because web visitors might be falsely led to believe that you are the source of the content, and because such framing may involve the unauthorized reproduction and distribution of works subject to copyright protection. Metatags. Metatags are HTML programming code instructions given to on-line search engines by the web file. Some developers incorporate third-party trademarks into metatags in hopes of drawing traffic intended for the third party to their sites. Developers should take caution in incorporating third-party marks into metatags in anything other than a generic or descriptive sense, or they may face a claim for trademark infringement.   Audits Our Intranet/Internet audit involves a comprehensive study of your company web site. There are several objectives to this study. We scrutinize your web site to assist you in complying with various regulations that may effect your site, including privacy law compliance, technology export regulation compliance, anti-boycott regulations, and Foreign Corrupt Practices Act compliance, as well as confirming that the necessary copyright and trademark use permissions have been obtained from third parties. We also review your web site to identify protectable intellectual property assets that exist or may arise from your site, including copyright, trade secret, patent, trademark and trade dress assets. We also review your site to look for proper trademark usage.