How to protect your website from copyright and trademark infringement Featured

3:48pm EDT June 2, 2011
How to protect your website from copyright and trademark infringement

You’re proud of your website. It's your face on the Internet, your online presence, and it may provide a robust suite of services for your customers. But if you aren't careful, cyber-looters may be able to snatch elements of your site for their own use, leaving you without legal recourse.

"Be vigilant about your website," says Sandra M. Koenig, a partner with Fay Sharpe LLP. "Generally there seems to be a thought process that because it's on the Internet it's fair game. It's really not."

Smart Business spoke with Koenig about how to protect your website from copyright and trademark infringement.

How do standard copyright and trademark laws affect websites?

The traditional copyright and trademark rules still apply in the electronic world. So copyright protects copyright owners' rights, and it gives them the right to decide who can copy it. So if you own the copyright for your website, somebody should not be copying your website, or elements of your website, or taking photographs from your website, because that is still an infringement. It's still stealing.

What are some website-related copyright infringement issues companies should be aware of?

Most often, we get calls from clients telling us that someone took a photograph, text or other image from their website and copied it to their own site. Also, sometimes a competitor might emulate the overall look and feel of a website a little too closely.

There are a lot of relevant  trademark issues  that end up in legal battles, as well.

Perhaps unique to the Internet are the use of  someone else's trademark in your website's source code, domain name hijacking, or registering a misspelled version of another's trademark  as a domain name to direct consumers to your site.

How can 'metatagging' be used for copyright infringement?

Sometimes a competitor will insert another person's trademark in their own website's source code. So when people are searching online for that trademark, the competitor's website will show up at the top of the search results.

The trademark is buried in the source code – it's not visible to viewers of the site.

How can a company prevent competitors from copying tangible elements or intangible aspects of its website?

Primarily, companies must be concerned with vigilance. There are mechanisms by which you can lock your website by disabling certain options. That way, people can’t copy and paste elements that you want to keep secure.

Another important step is registering your copyright for the website or  sections of the website that are of critical importance. For instance, if you have detailed photos of your product line, you could register those instead of the entire website. Registration is beneficial  if you needed to sue someone. To ensure you are able to legally retaliate in a copyright infringement matter, it is important to have your registration in place or in the works, if it's not done already.

Keep your copyright and trademark notices visible on each web page. This is particularly useful because hyperlinking can create trouble, too. If a link doesn’t go to a company's home page but goes deeper into the website, the site visitor may not see the copyright or trademark notice. Many companies only put the copyright notice on the first or last page. It's a good rule to put legal notices on every page just in case someone links to a 'middle' page.

What steps can you take if you believe a copyright infringement has taken place?

Depending on the situation, you might begin with a cease and desist letter from your lawyer to try to negotiate a resolution right away, without going through the court process. A C&D letter is more economical, but it is always an option to file suit for copyright infringement. Arbitration is also an option.

Does a letter get results right away?

Surprisingly it often does. It wakes people up. You can request damages or you can just request someone stop using the copyrighted element or infringing trademark.

Aside from sending a nasty letter or filing suit, if the alleged infringement is a domain name issue, there are Uniform Domain-Name Dispute-Resolution Policy (UDRP) proceedings where the two parties go to arbitration over the domain name.

How do you know if you truly own the elements of your website?

There are two parts to a website, the underlying code and the visual images -- what you see on your screen. If you are working with an outside web site developer, ownership rights should be negotiable. They will often want to own the 'building block' code, which allows them to re-use this code without needing to reinvent the wheel. They should however, assign any images and text they might create to you.  Also, any content you are asking them to incorporate into the site needs to be owned by you.  So if you like a particular picture you want to be sure you have title or the right to use the content.  In other words, do not go online and just download content or take content from a book.

One thing to keep in mind is if you create the site internally, the company owns it. Sometimes elements are created by those outside the company. You might hire a photographer or someone to make illustrations. It's important to clear up who owns the copyright for those elements ahead of time because it will become important if someone were to steal one of those elements.

Sandra M. Koenig is a partner with Fay Sharpe LLP. Reach her at (216) 363-9137 or skoenig@faysharpe.com.