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 line 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 that out-of-state customer sues you, he must do it in your state – not his.  In other words, you want the “home-field advantage.”  For this reason, you should consider posting something like this on your home page:
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 [your state].   
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 apply for a registered trademark so that 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 2011 by [your company name].  
Or even:
© InterNACHI 2011
Note that three elements must be included in your copyright notation 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 
  • 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.  
  • Do not create a trademark that is so similar to a competitor’s trademark that it is likely to cause confusion to the public.  
  • 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 we attorneys do when deciding whether to sue on behalf of a client is to visit the defendant’s website.  We often find language that we will able to use against the defendant if we file suit.  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 that your company is “The Most Experienced Home Inspector in Colorado,” 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. 
The “existing business relationship” exception under the federal anti-fax law 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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