We have experience recovering domain names and other intellectual property rights from “squatters” who have attempted to profit off our clients’ goodwill and trademarks. Please feel free to contact us if you think you may have a cybersquatting problem.
Cybersquatting typically refers to and begins with purchasing domain names the are identical or similar to trademarks owned by others. Cybersquatters will have a bad faith intent to sell products under the squatted domain name or may simply try to sell the domain name to the real owner of the trademark at a later time or to someone else who might be interesting in buying the domain name.
Domain name squatting is the practice of buying (and then selling) domain names of usually well-known brands with the intent to hold them for “ransom” so that the seller must then repurchase the domain name from the squatter. The offered price is usually exceptionally high. The squatter may also “trade” in the domain name by selling the squatted domain name to another squatter or to a company that will monetize the website by selling goods with the goodwill connected to the trademark that is part of the domain name.
Typosquatting occurs when an infringer purchases a domain name that contains spelling errors that consumers make when they attempt to type the correct URL of a particular company. Most often, the domain name includes a protected brand or trademark.
The typosquatter will usually have its website under the misspelled URL that offers products for sale that are being sold illegally (because they are counterfeit) or are possibly grey market goods. In other instances, the squatter may use the recognized brand name to steer consumers to the squatter’s misspelled URL to sell goods that are not at all related to the infringed brand.
The typosquatter’s plan can be even more nefarious, such as seeking to install “malware,” which would either infect the user’s computer or generate revenue from adware.
Some examples of typosquatting include:
There are two ways the domain name owner can recover a domain name and possibly receive damages if a domain name has been stolen or squatted.
The first step can be to file a UDRP complaint (Uniform Domain Name Dispute Resolution Policy) via ICANN, an administrator of the Internet’s domain name system. If successful, a UDRP proceeding can result in the administrative body forcing the squatter to transfer the offending domain name back to the party who filed the complaint; or the deciding body can order that the offending domain name be deleted. However, the only remedy in these proceedings is the transfer or deletion of the domain name, so if you are seeking monetary damages, you must go to court.
If one is seeking monetary damages, or if the UDRP complaint is not successful, it may be possible to file a federal court complaint under the Anticybersquatting Consumer Protection Act (ACPA). This law permits trademark owners to have the domain name transferred to them and potentially receive monetary damages. Usually, other claims can be brought against the infringer, including unfair competition, trademark infringement, and false advertising, depending on how the infringer uses the domain name.
If you think you have a cybersquatting issue, please feel free to contact us, and we will let you know your options.
Companies and individuals who sell over the Internet must comply with intellectual property and advertising laws as well as several web-specific regulations based not only in the U.S. but abroad as well. Further, hosting customer testimonials on websites can have legal consequences; Internet laws vary significantly. Also, linking to third-party websites can further complicate legal issues related to business practices or terms of use policies.
Because of the nature of e-commerce, intellectual property (IP) protection usually becomes a top priority because it is easy to have one’s brand infringed online. In the same way, it is also easy to cross the line into infringing another’s rights if you are not careful.
We usually begin our e-commerce consultation by laying out a plan to protect trademarks, slogans, logos, and domain names. We also commonly recommend securing the website itself with copyright registration. We also advise our clients on complying with regulations based on the type of their online business. For example, many companies will need to comply with Europe’s General Data Protection Regulation (GDPR). The GDPR is a European law that protects EU citizens’ personal data and privacy for transactions within EU member states. Depending on the extent of your company’s contact with European citizens, you may have to comply with the GDPR. The GDPR requires securing several types of data such as name, address, and ID numbers; and web data such as location, IP address, cookie data.
In connection with your online business, we help clients create and maintain good e-commerce policies, assist with best practices, and draft many forms of agreements that involve an online presence. For example, we prepare various website agreements to help clients purchase and sell goods and services, establish warranties and set payment terms. We also assist clients in developing the following types of documents and policies for the online business:
Even with the best policies in place, disputes can still arise in the e-commerce space. Please see our IP Litigation page and our Business and Commercial Litigation page, which address conflicts in the areas of trademark, unfair competition, false advertising, breach of contract.
With the ubiquity of Amazon in today’s marketplace, critical issues have arisen for both owners of IP rights as well as for Amazon sellers. We help clients stop unauthorized sellers by removing products and enforcing IP rights against competitors and counterfeiters who infringe on your IP rights or seek to trade off your goodwill. Using intellectual property law, including trademark, copyrights, and patents, we can help Amazon sellers protect their sales.
We also help clients remove their suspensions from their Amazon Seller Accounts to help them get back on their way to sell their products. Finally, we can resolve disputes between manufacturers and sellers concerning IMAP or MAP pricing.
For Amazon sellers, conflicts and disputes with Amazon can have a crippling effect on your business, especially if your primary selling mode is through Amazon. We help clients resolve disputes with Amazon—specifically Amazon seller suspensions
If Amazon has suspended your listing or entire seller’s account, it requires the seller to submit a “Plan of Action” to correct the issue. We help clients draft a convincing Plan of Action to enable them to continue online sales. The Plan of Action should have three sections:
After you receive notice of the Amazon Seller Account Suspension, you will have 17 days to send the appeal containing your Plan of Action. Amazon may act on your submission within 48 hours, but the decision can take as long as 60 days.
If Amazon suspends your Seller’s Account, contact us to determine the best strategy to submit your appeal and convince Amazon to reinstate your account.
An Internet Minimum Advertised Price Policy (MAP or IMAPP—in the case of Internet pricing) is a minimum advertising sales price policy that a manufacturer-seller places on the goods to which all retailers or resellers must agree. The MAP is not itself a law but is a contract term between the manufacturer-seller and downstream reseller. Under the MAP terms, the reseller can advertise the product above the MAP but cannot advertise below the MAP. If the reseller advertises a product below a set price, the reseller can incur penalties. These penalties usually involve consequences ranging from the manufacturer denying promotional support (such as cooperative advertising) to terminating the contract between the manufacturer and reseller.
MAP policies can support competition while at the same time helping the manufacturer but have to be carefully drafted. For example, if the contract is clear that the MAP’s purpose is to act as a vertical or horizontal price-fixing, there can be severe legal consequences.
Disputes involving MAP contract terms are usually litigated under a breach of contract theory. However, some manufacturers can sue for other claims such as unfair competition for actions relating to their MAP policies. On the other hand, resellers sometimes bring specific antitrust (anti-competition) and unfair competition claims against manufacturers if the MAP policy is not enforced equally or properly under state or federal law. These are serious claims that must be addressed by a qualified attorney.
There are even more issues that surround IMAP or MAP pricing. If you believe you have an IMAP issue, please contact us for a consultation.
Domain name registrations have become primary corporate (and personal) forms of assets. Over 1 billion people actively use intellectual property, domain names, and social media handles as part of their brand development
The domain name acquisition process has developed such that domain name rights are bought, sold, and auctioned in “inventories.” Some domain names are purchased for as much as tens or even hundreds of thousands of U.S. dollars. However, some statistics show that only 10% of the currently registered domain names are in actual use. Investors and entrepreneurs who do not sell goods under the domain names own many registrations.
Before coming to us, the best approach is to first navigate to the domain name in question to see if the domain name is currently landing on some form of content. Is there a website? Is there just a landing page? The next step is to consider your budget. Are you trying to buy a single word, .com but only have five hundred dollars to spend? The chances are that a budget at that level will not result in a successful acquisition. The third step is to make sure you research the word in the domain name to see if it is even available for use because of potential trademark rights. We provide trademark search services to help you understand if the domain name can also be used and registered as a trademark. Doing so can avoid significant trademark infringement liability.
As a result of ICANN’s release of numerous new top-level domain names (ex., .com, .net, or .org), the opportunity for cybersquatting has increased. Because of this, we provide defensive domain name acquisition services for domain names containing your brand name or similar names so that others do not have a chance to trade on your goodwill. The cost of acquiring domains could be less than the price of administrative proceedings (such as a UDRP proceeding) or federal court litigation to cure potential trademark infringement.
To know which domain names to buy, one must first consider the budget and cost. After that step, it is best to begin looking for your category and then determine your brand’s best fitting domain name. Alternative domain strategy is vital. You need to have a backup purchase target you can acquire if your primary target is no longer available. Usually, most companies seek to purchase “.com” top-level-domain names as it is the commerce leader and recognized worldwide.
Choosing the best domain name will depend on your budget, timing, and overall company strategy. Suppose you are a small business or startup company. In that case, it might be best to target a domain name that is more affordable but still related to your brand in some way until you have a solid footing to establish more of a national or global presence for your brand.
Nardiello Law discreetly and confidentially researches, negotiates, and purchases nearly any kind of intellectual property, including domain names, on your behalf while keeping your identity anonymous. If you are the owner of a startup company or a global brand, we can help you negotiate a domain name purchase so your identity will not affect the offering price.
To avoid hostile actions such as cybersquatting, typosquatting, or online impersonation, the Internet Corporation for Assigned Names and Numbers (“ICANN”) has implemented several practices to discourage misuse. For example, ICANN currently enforces a waiting period on domain transfers. Also, ICANN permits the “locking” of domains to make domain theft more difficult for the squatter.
However, even with these protections, domain theft remains a problem. We advise on the steps to avoid having a domain name or username acquired by squatters and advise clients on strengthening their intellectual property rights to recover the domain name or username.
Nardiello Law helps clients meet their online activity obligations under the Digital Millennium Copyright Act (DMCA). The DMCA is a part of the United States Copyright Act, which gives copyright owners protection and a “safe harbor” for content curators. Online service providers (OSPs) who provide web hosting, search engines, directories, blogging platforms, and other information will benefit from the DMCA safe harbor.
There are two main parts to the DMCA: The “safe harbor” and the “takedown notice and procedure.” The safe harbor protects Online Service Providers and others related to them from liability for copyright infringement, as long as the business or individual is complying with the DMCA.
The DMCA was put into effect in 1998 to acknowledge copyright owners’ concerns about user-generated content. User-generated content is text, photos, music, or videos uploaded by others, which can violate the copyright owner’s rights. The DMCA balances the website owners’ interests, who want to permit users to post content without them being liable for the copyright infringement, with the copyright owners who do not want their content copied. The DMCA carved out an exception for these middlemen, having copyright law protect online service providers (“OSPs”) from liability involving disputes among copyright owners and Internet users who post infringing content. The condition is that the OSPs must meet specific requirements or elements under the law to have this immunity. The DMCA “safe harbor” provides immunity to copyright infringement claims if the OSPs promptly remove or block access to the infringing content after receiving the copyright owners’ proper written notice.
In general, the DMCA notices your company receives (or if you are the copyright owner, will send) should meet the following requirements:
There are unintended consequences of the DMCA law and procedures. The problem arises when competitors use the DMCA as an anti-competitive weapon, utilizing the takedown requests to remove non-infringing content so that they can gain an advantage over their competitors. These requests are often unjustified for several reasons, including that the alleged infringing content is actually not “copied” or even that the complainant does not even own the copyrighted work in question.
If you or your company have any kind of web presence where content can be uploaded or reposted, you may need to comply with the DMCA. We assist clients in complying with the DMCA to maintain their online protection for content that might infringe copyright law. Please contact us for help with DMCA compliance as well as for working through any DMCA takedown notices you believe may be improper.
There are generally four ways online service providers can comply with the DMCA:
The online service provider must designate an agent with the Copyright Office. Doing so allows the company to receive the DMCA infringement notices. The designation must provide the Copyright Office with the agent’s most recent contact information. One can register an agent or designate a new agent on the Copyright Office’s DMCA website.
Since 2016 the Copyright Office has been providing an online directory of contact information for all designated agents. The online service provider should reference this directory to identify the appropriate party to receive the takedown notice.
The Online Service Provider should set up the procedures for taking down infringing before the website goes live. The Online Service Provider should be familiar with the DMCA takedown process, and the company should follow it automatically. In practice, the alleged copyright owners will identify allegedly infringing content in writing to a service provider’s designated agent. The DMCA requires the content to be quickly removed once the service provider is notified.
The best practice is to create internal notice and takedown procedures for removing infringing content. Doing so will help the company avoid DMCA liability and permit users to post content on their websites. Suppose a copyright owner sends several takedown notices to a provider, with the provider taking no action or marking no response. In that case, the copyright owner has the right to bring a claim for the OSP’s failure to quickly block or remove the infringing content. On the other hand, OSPs can avoid monetary liability if the proper takedown procedure is followed after receiving a DMCA notice that a copyright is infringed on their platform.
Many companies create a policy suspending a user’s account if they are responsible for repeat DMCA complaints. This policy should be made clearly and conspicuously to all platform users to avoid a defense of lack of proper notice of the policy. The notice is usually contained in the Privacy Policy or Terms of Use sections of the website. The policy and terms of use should have proper legal wording to reflect that they consent to the terms and conditions and privacy policy by the user utilizing the website.
There is a difference between uploading content directly versus placing links to that content on your site under the DMCA. Link-preference is part of the safe harbor provision under Section 512(d). Service providers cannot be held liable for linking to a site containing copyright-protected material. Using links can go a long way in avoiding severe monetary damages for copyright infringement.
It goes without saying but obtain the copyright owner’s permission before using their works on your website. Doing so will prevent serious copyright liability issues and will avoid receiving DMCA complaints.
Suppose your company operates an interactive website, such as a blog, web page comment sections, message boards. In that case, it’s of extreme importance to monitor these areas of your site frequently for potential copyright infringement. If you fail to monitor and take action against infringing content, the company could be exposed to copyright infringement liability. We offer several options to monitor your website for infringing content. Please feel free to contact us for a consultation on the best approach.
Nardiello Law provides online reputation management services to improve and maintain your business’s online reputation, which may have been harmed by inaccurate negative reviews or even by competitors who actively try to harm your business. If you believe you may have a possible reputation issue online, please contact us for a consultation.
Online reputation management involves a combination of public relations, legal strategies, and search engine optimization (SEO) techniques to protect, enforce, and defend your online image, brand, or business reputation.
If your online reputation is not carefully managed and protected, you could lose sales and goodwill, leading to future damage to your business reputation. Once there is damage to your brand, this can be difficult to correct.
Depending on the nature of your public relations or online reputation management issue, your business may need the services of a law firm with experience in reputation protection and in resolving acts of internet defamation or unfair competition. In other situations, an online reputation management company may be more appropriate or should be used in connection with a law firm’s services.
Nardiello Law assists clients with the legal aspects of mitigating against malicious or defamatory content, negative reviews, negative mentions, unfair claims of a bad reputation, and online defamation. Please contact us if you believe you have an online reputation issue. During our consultation, it may be apparent that you could benefit from using an online reputation management company. We work with Red Sky Advertising, which assists our clients in the field of public relations (PR) mitigation services.
Several factors affect your online reputation. Most businesses need some kind of reputation management strategy primarily because of customer or client reviews posted on various online commerce websites. While it is likely that positive reviews will far outnumber any negative content, having a review management program in place will help you quickly respond to negative reviews that damage your online image. The following factors impact your company’s online reputation:
With our online management services, we help our clients obtain control over how their name or brand is seen online.
Over 1 billion people use Google products, including Google Search. Google uses an algorithm (which is frequently updated) to determine the search results given to a user based on their particular search. High-authority content is likely to rank among the first results for a search term, whereas low-authority content may not rank at all. When a search user searches for a particular company, review sites often rank high in the results.
Reputation management services work to influence search results by increasing a company’s positive reputation on the web. Simultaneously, using various legal reputation management tactics (such as cease and desist letters and lawsuits), a company’s online reputation can be improved.
Typically, a combination of a law firm and an online reputation management company will use the following types of tactics:
People typically obtain their first impression of another person or company by searching the Internet. Before most people purchase a product or a service, Internet research is usually first conducted. This type of asset can make the difference in obtaining the first sale or not.
Essentially anyone conducting business over the Internet needs some form of reputation management service, including small and large companies, attorneys, accountants, doctors, engineers, contractors, freelancers, and consultants.
Fake reviews are becoming more common on the Internet and affect a company’s reputation in the marketplace. These reviews can either be positive or negative, and both can be a problem for competitors.
If the reviews are positive but not genuine, then not only can the consumer be harmed (tricked), but competitors can be affected as well. If, for example, one competitor in the market has a much larger number of positive reviews than others, there is a good chance that the positive reviews will steer the purchasing public to that particular business.
Though the cases are not very common, there are legal ways to stop a competitor from publishing false positive reviews on their website, which is a misinformation campaign. For example, cease and desist letters or even lawsuits can be filed based on unfair competition, false advertising, or deceptive business practices. Please see our Unfair Competition Litigation section for more information on resolving these types of disputes.
On the other hand, false negative reviews can be more of a direct threat. Usually, these reviews are posted by one of three sources: (1) an individual with a personal grudge; (2) a competitor attempting to damage a company’s online image; and (3) unhappy customers who are falsely amplifying their actual dispute with the company.
False or malicious reviews can be extremely harmful to a business’s reputation, damage its goodwill, and eventually weaken its brand and trademark. Nonetheless, there are legal steps a company can take to combat these types of reviews. A company may bring a claim in court for defamation or unfair competition for publishing negative fake reviews.
While individuals have robust First Amendment rights to criticize businesses or people, the line can be crossed when those words are intentionally false.
There are several options available when you can identify the source of defamatory material posted on the Internet. First, contacting the person responsible for the content could be the best initial action, where you could demand that they voluntarily remove the false statements. It is possible that the content publisher may not respond at all or may even publish your letter on the Internet. That is why your correspondence must be appropriately worded.
Keep in mind that anything you publish on the Internet can be used against you, even formally in court. Instead of giving the offending party an advantage, a better solution may be to have a well-written letter sent by your attorney. That could ultimately result in the offending content being taken down much sooner.
Another option is to contact the ISP (Internet Service Provider), website owner, or web host directly to request that the statements be removed. Still, in other cases, the provider may simply refuse to take down or disable access to any content without a formal court order.
In many cases, your only option may be to start a lawsuit. It is possible that your direct correspondence to the website owner, web host, or ISP, may not be effective. The next step may need to be filing a lawsuit to remove the defamatory content. To determine if it is the right step, you must first consider if you know who is posting the content. If you cannot identify the individual, you may need to obtain a formal subpoena issued from a court to uncover the anonymous poster’s identity. An attorney can assist you with this procedure. However, this step alone can increase the lawsuit’s cost.
If you already know the publisher’s identity and have not received an adequate response from the source or the ISP or website owner, it may be time to file a lawsuit.
Still, to have a valid case, a company must prove its damages. In essence, you would need to show that there was or that there could be imminent damage to your reputation. Depending on your jurisdiction’s laws, if you can establish defamation per se, which involves negative statements made in the context of another’s trade, business, or profession, damages are typically presumed.
Before starting a defamation or unfair competition lawsuit, one should consider if your case could be challenged as a “SLAPP” (Strategic Lawsuit Against Public Participation) lawsuit. A SLAPP lawsuit is one that challenges a meritless lawsuit against a defendant in retaliation for speaking out on an issue of public concern. For example, if negative comments about your company are made on your social media pages, and these comments are false and damaging, you may have a defamation claim. However, that author-defendant may be able to retaliate with a SLAPP lawsuit claiming that their statements are of a concern and value to the public. The entity bringing the case will claim that your lawsuit against them chills free speech.
Often, SLAPPs are brought simply for a company to incur significant legal fees. As a result, many states even have “anti-SLAPP” laws. Those laws permit the SLAPP defendant to “SLAPP back,” filing a motion to dismiss the complaint at a very early stage in the lawsuit and may also allow the SLAPP defendant to win attorneys’ fees as well as punitive damages for malicious prosecution.
Accordingly, asserting your rights in the case of false reviews can become complicated. We can help you determine the best path forward if you believe you have become the target of defamation or incorrect information. Please contact us for a consultation if you have any questions.
As part of Nardiello Law’s Internet and e-Commerce Law Services, we provide counseling on developing, drafting, and litigation of website privacy policies in the United States.
A website privacy policy is a document that explains how your business collects, uses, stores, and discloses a customer’s or client’s data and personal information. Personal data can include name, address, email address, IP address, social security number, login information, credit card information, and other identifying information. In most cases, it is best to have an attorney draft the privacy policy.
Your business will have a legal obligation to include the correct content in the policy. Liability under federal law can result from an improperly worded policy. The Federal Trade Commission (FTC) can take action against your company based on “deception” if there is inaccurate information published in the privacy policy or the description of your privacy practices. Some states such as California require published privacy policies if a company will collect personal data. Furthermore, if you anticipate that citizens of the European Union will be visiting your website and you may be collecting certain information about them, you may also need to comply with the EU General Data Protection Regulation (the “GDPR”). The GDPR is a European Union data privacy law that can have jurisdiction over U.S. residents in particular circumstances. Penalties for violating the GDPR can be harsh. The best practice is to have an attorney draft your policy to reflect your organization’s specific data collection and privacy practices. Doing so will help you avoid lawsuits, FTC enforcement, or even GDRP enforcement through the European Commission Office (ECO).
As data collection practices become more sophisticated (and invasive), the policies will likely become more complex. Furthermore, as the individual U.S. states continue adopting data protection laws, like California, with its Consumer Privacy Act, there will probably be the need to have jurisdiction-specific terms in the policy itself.
Health Insurance Portability and Accountability Act (HIPAA)
This federal law requires health care providers to give notice of their data privacy practices.
Children’s Online Privacy Protection Act (COPPA)
Any website or mobile application that collects, shares information, or targets communications or ads to children under 13 is required to publish a clear and comprehensive online privacy policy. The policy should explain how personal information and contact information is collected.
Gramm-Leach-Bliley Act
If a financial institution is “significantly engaged” providing financial services, it must give “clear, conspicuous, and accurate statements” of its information-sharing practices, including the gathering of personal information and information sharing with third parties. The company must describe “what information the company collects about its consumers and customers, with whom it shares the information, and how it protects or safeguards the information.” The applicable law requires the collecting company to provide information on how it gathers and discloses “nonpublic personal information.”
What to Include in the Privacy Notice
Appropriate policy content varies from one business to another. How a website collects and manages information and personal data and how it interacts with third parties is unique to every company. Additionally, website user’s residence can impact the company’s policy content because of international laws protecting global consumers.
Most policies should have the following content. However, keep in mind that this is only a starting point:
Can I just use a free policy template?
You certainly can, but you have no assurance that what you obtain from the Internet or a non-legal third-party service provider will have the appropriate language to meet your legal obligations under state, federal, or European Union law. Companies will often use a template that does not disclose their particular internal processes to protect information. Instead, it describes how the company that drafted the policy protects its data. Typically, this happens where a privacy policy was simply copied and pasted from another website. However, the policy is only effective and even legal when it identifies how your company collects, stores, uses, shares with third parties, and, if applicable, protects visitor data. Accordingly, if you have any questions about drafting a privacy policy, please contact us.
Nardiello Law provides counseling and drafting services for website Terms of Use (TOU) agreements. Sometimes also known as Terms of Service or Terms and Conditions provisions, these agreements define the legal relationship between the website or mobile app owner and its visitors. The TOU is separate from the Privacy Policy, which provides information to the website visitor about how personal information is shared. If drafted correctly, a TOU can lower the risk of liability for a user’s activities on the website and limit liability for potential damages sustained by website users due to the website’s technical issues. When drafting Terms of Use Agreements, we first understand the client’s business and the client’s particular needs to provide the most effective Terms of Use agreement possible.
Terms of Use agreements are legal contracts between the website (or mobile app) owner and the user. By setting the ground rules on how the website may be used, the owner will be able to remove or block individuals who are breaking agreement terms and insulate the owner from potential liability.
Additionally, if your website or app contains user-generated content, the TOU can provide ground rules on what type of user content is permitted. Establishing these ground rules can further limit liability in lawsuits, especially those involving intellectual property rights.
The Terms of Use, or Terms of Service Agreement, should have a provision protecting your intellectual property, including copyrights, trademarks, and trade secrets. The purpose of these provisions is to put the world on notice that you are the IP owner and that as a condition of accessing the website, the user acknowledges ownership of your legal rights.
The TOU’s IP portion should reference the copyrights and trademarks owned by the website or mobile app owner. Copyrights can protect most text, photos, and specific layouts of your website. Your company’s logos, word trademarks, slogans, and brands can be secured under United States trademark law. Copyright and trademark ownership should be addressed in the TOU’s separate IP section.
As your website or online platform owner, you define the rules on how you expect users to behave on the website. There are several options for managing rule violators, including temporary suspensions and even outright bans. The consequences for rule violations are usually described in the TOA’s termination clause.
It is critical to draft the termination clause correctly. The termination clause gives notice to your users that violating the Terms of Use will be suspended or banned from the site.
Also, the termination clause may have additional terms, such as recognizing that violating the terms of use or terms of service could be considered a violation of another law (such as unfair competition). It could also state that if the user violates the Terms of Use, the user agrees that the website owner is entitled to specific legal remedies. However, these terms should be carefully considered and drafted by an attorney because their validity can depend on many factors, including controlling state law.
The Terms of Use (also known as “Terms of Service”) policy can limit your liability as a website owner for any damage that might occur from the use of your website. For example, in the “disclaimer” section of the TOU, the user is usually placed on notice that the owner makes no promise that the site will not be problem-free or that the site will provide specific results. The disclaimer section could also mention that the website owner cannot guarantee that the site content does not contain any viruses or malware that could harm or infiltrate the user’s computer.
While the disclaimer section can limit liability to some degree, it is not a cure-all, so it is recommended that one consult with an attorney before finalizing the agreement.
The Terms of Use agreement should have a “Governing Law” Clause, which sets out what law should apply to resolve any disputes.
This clause also usually contains a “venue” section that allows the user to agree to have any dispute resolved in a particular court in a specific state by using the website. A venue selection clause could be very beneficial to the website owner who may not want to bring a lawsuit in an inconvenient location.
Yet, there are still limits to the “venue” provisions of Terms of Use agreements. For example, the term may not apply to a person living outside of the United States. An attorney can help you decide on the proper wording for this section.
In addition to the main Terms of Use or Terms of Service Agreement, most companies choose to have a separate page for users to make claims of copyright infringement and for a user to request that certain infringing content be removed. The separate copyright section allows website owners to comply with the Digital Millennium Copyright Act (DMCA), part of the U.S. Copyright Law. If the website owner properly complies with the DMCA, it may be protected from liability for copyright infringement due to website users’ activities and content publication.
This section should require the user to submit their takedown request in writing that should contain at least the following information, as required under Section 512(c)(3) of the DMCA:
Nardiello Law can help you draft effective Terms of Use agreements that will help protect your business as much as is permitted under the law. In the event you have disputes that relate to a violation or alleged violation of a TOU or privacy policy, please contact us for a consultation
Nardiello Law provides strategic advice to its web-based business clients, including retailers, distributors, third-party sellers on marketplace websites, platform providers, tech startups, and entrepreneurs. Having an experienced e-commerce attorney is crucial to successfully create, administer, and enforce various Internet business contracts such as service agreements, client-facing agreements, vendor contracts, data security and data privacy agreements, and intellectual property agreements.
We have experience drafting business-to-business agreements (B2B) and business-to-consumer (B2C) contract for online businesses so that our clients avoid serious legal issues. With our background in intellectual property, internet law, and commercial litigation, we are especially well-suited to help our clients get off the ground, as well as to protect them from potential liability.
Because we have assisted clients in drafting and litigating a wide range of electronic commerce documents, we have a broad understanding of how e-commerce agreements operate in the real world while complying with numerous Internet laws.
There are many types of agreements that a web-based business may need to create before launching:
Online businesses who manufacture products and sell to consumers will likely need a robust “Terms of Sale” agreement for online sales. These contracts, which layout all of the terms of the online sale, usually include at least the following topics:
Nardiello Law works closely with each client to first understand their business. We then create a custom-tailored plan and draft effective agreements to reduce risks associated with online commerce and United States Internet law.
If you believe you need assistance or legal advice with protecting your rights in the e-commerce and Internet law areas while reducing the risk of litigation, please feel free to contact us for a consultation.