Website Legal Issues

by Mark Cohen and Nick Gromicko

The Internet has created tremendous opportunities for marketing your business, but it has also created new legal traps for the unwary.  Here are five considerations inspectors should bear in mind when building and adding to their business websites.

1.  Jurisdiction

This is important if you live close to a state border and routinely offer or provide services across state lines.  Generally, a court cannot exercise jurisdiction over a resident or company in another state unless that person or entity does business in that state.  If your website attracts potential customers from another state, you want to make sure that if an out-of-state customer sues you, the customer must do it in your state – not the customer’s home state.  In other words, you want the “home-field advantage.”  For this reason, you should consider posting something like this on your homepage:

This site provides general information about our services and qualifications.  By using this site, you agree that our maintenance of this site does not constitute the transaction of business in any state other than [inspector’s state/province].  You agree that the exclusive venue for any action against us arising out of your use of this site or any subsequent relationship with us shall be in [inspector’s state/province]. 

2.  Protecting Copyrights and Trademarks 

Many people do not realize that to copyright something, all you must do is put the public on notice of your claim by including the copyright symbol © on your work.  Similarly, to trademark something, all you must do is put the public on notice by use of the ™ symbol.  You do not have to file any documents with the government; you only have to do that if you want to register your copyright or if you want to register a trademark so you can use the ® symbol with your trademark.  Registration does offer some advantages if you end up in litigation, but it is not mandatory.  Your website may contain photos, drawings, and/or wording that you worked hard to create.  You should protect these things by placing a notice on your home page, such as this:

This website and its entire contents are copyrighted 2017 by [your company name].  

Or even just:

© InterNACHI 2017

Note that three elements must be included in your copyright notice in order to make it legally enforceable: 

  • your name or your company name;
  • the copyright symbol or the word "copyright"; and
  • the year of copyright.

3.  Other People Protecting Their Copyrights and Trademarks 

  1. Do not copy photos, drawings or language from other websites or sources that are copyrighted without permission.  Most people never get caught, but if you do, you will pay thousands of dollars to defend and/or or settle a lawsuit.  
  2. Do not create a trademark that is so similar to a competitor’s trademark that it is likely to cause confusion for the public.  
  3. Do not use the ® symbol unless the U.S. Patent and Trademark Office (USPTO) has issued you a Certificate of Registration for your trademark.      


4.  Your Website as Evidence Against You 

One of the first things attorneys do when deciding whether to sue on behalf of a client is to visit the potential defendant’s website.  They often find language they will able to use against the defendant.  View your website with a critical eye.  Does your website make promises that you cannot keep or claims you cannot prove?  For instance, if your website claims your company is “The Most Experienced Home Inspector in Colorado,” or you are an "Expert" (which is a legal term), you had better have some data to back that up; if you do not, some plaintiff’s attorney may make you eat those words in court some day.

5.  Privacy Issues 

Websites are great because they allow you to collect the email addresses of visitors, and that information becomes more valuable as that list grows.   However, if you use that list to send commercial emails to others, you must comply with the federal CAN-SPAM Act.

A “commercial email” is defined as “any electronic mail message, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” 

All commercial emails must include: 

  1. a legitimate return email address and a physical address;
  2. a clear and conspicuous notice of the recipient’s opportunity to “opt out”; 
  3. a mechanism that must be provided or an email address to which a recipient may send a message to opt out; and 
  4. a clear and conspicuous notice that the message is an advertisement or solicitation. 

Note that the law governing emails and fax advertisements is different.  The federal Junk Fax Prevention Act contains an exception if the fax sender has an “existing business relationship” with the recipient.  This exception does not apply to commercial emails, so even if you have a prior relationship with the recipient, you must still comply with the Act.

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