Monday, October 23rd, 2017

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Protecting Your Intellectual Property in Cyberspace

While the potential exposure and market penetration for businesses in cyberspace is endless, so is the potential for infringement and theft of company secrets, brand identifiers and other intellectual property. It is now (more then ever) important to protect these assets. Doing so in our high-tech world goes beyond worrying about whether or not someone will use your company’s name or mark on a sign or in an ad. The very nature of the World Wide Web opens up a new litany of potential problems and possible infringements.

Some ways to protect your company’s intellectual property online include:

1. First and foremost, identify what intellectual property you have on your site. For example, company names, logos and slogans may be entitled to trademark protection. Pictures, editorial content, layout and even sounds on the site are some examples of copyrightable works. Register these forms of intellectual property on a national and, if applicable, international basis. Registration serves as notice to the public that you are the rightful owner of the work and will help if you have to file a lawsuit to protect those rights.

2. Affix the appropriate symbol (i.e. TM, © or ®) at the bottom of each Web page and with all uses of your corporate name, logo and tagline. Again, this serves as notice of ownership and prevents an infringer from claiming that he or she did not know they were doing anything wrong.

3. Beware of cyber squatters who may register versions of your company name in hopes of selling the domain back to you for inflated prices. The most recent example of this situation is when someone registered "Pope Benedict XVI" prior to his appointment.

4. Be sure to have an attorney draft various agreements to be posted on the site, such as Terms of Use, which should include provisions related to intellectual property rights and Privacy Policy, which will inform visitors whether and how you use information about them collected on your site.

5. Prior to the creation of your Web site, have the developer sign a "Work For Hire" agreement to ensure that you own all of the intellectual property rights associated with the site. If you are the creator of artistic works, such as photographs or designs, you should make sure you are credited for the works. Provide the site on which the works will be displayed with a limited release, which does not allow the works to be distributed or reproduced in any way other than the consented uses.

6. Remember to register updated versions of your site for copyright protection whenever changes are made. Although it may be impractical to register versions each time your site undergoes some change, it is important to do so when there is a substantial change in the copyrightable works. This step will ensure that the works are protected in their most recent form.

7. Keep in mind that the laws of other countries differ from the United States. Consult with your attorney to make sure you are protected (and not infringing) in the countries where you do business.

8. Be careful not to infringe on other’s rights. Make sure that your site does not contain any works or marks that are owned by others. Also, when linking to a third party Web site, the best practice is to enter into a linking agreement with any site that provides a link to yours. If this is not feasible, be sure to only link to the third party’s homepage.

9. Have employees and others who are exposed to your company’s trade secrets sign a confidentiality agreement. Otherwise, you may find those secrets posted on the Web for the world to see. Apple recently experienced this crisis when their proprietary information was posted on the Web. Because the damage was already done, Apple was not in a position to undo the harm.

10. Have users who submit pictures and/or testimonials for posting on your site sign a release and authorization for your use.

There are pros and cons when expanding into the world of e-commerce. Recognizing the risks is half the battle. The other half is taking action to decrease those risks through evaluating your site, monitoring online activity and implementing the steps noted above.

About the Author:

A member of Broad and Cassel’s Commercial Litigation and Intellectual Property Practice Groups, Gabrielle C. Bozza, Esq. has assisted clients in a number of situations involving intellectual property and entertainment law issues. She is active with the Florida Bar’s Entertainment, Arts and Sports Law Section and the National Academy of Recording Arts and Sciences. She was a guest lecturer on music privacy for the University of Miami School of Communications and has hosted several roundtable discussions on entertainment related topics. She earned a bachelor’s degree from the University of Central Florida and a Juris Doctorate from Nova Southeastern University, Shepard Broad Law Center. She may be reached at gbozza@broadandcassel.com or 954.764.7060.


About Create Magazine
First published in 2001, Create Magazine is an award-winning, bi-monthly publication that provides creative professionals with an insider’s perspective on the people, news, trends and events that influence the local advertising and creative production industries. With five regional editions nationwide, each issue features articles by local community leaders who are the trusted source for information and commentary on the Advertising, Design, Printing, Photography, Film and Video, Animation and New Media industries. To find out more, visit Create Magazine online at createmagazine.com.


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