White SW Computer Law
|Intellectual Property, Information Technology & Telecommunications Lawyers|
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: firstname.lastname@example.org Internet: http://www.computerlaw.com.au
There are lots of traps and hazards on the Internet. Here are some you should think about.
If you have engaged a software developer to create an Internet site for you the copyright in your site will be owned by the developer unless an assignment of copyright has been signed. That means that the developer may be able to licence your site to somebody else without your consent.
Before the web site is accepted, performance and functional tests should be undertaken to examine important features, such as graphic load time, functionality etc to ensure that the development meets all your requirements (which should have been addressed in the contractual documentation).
If you are a web site developer and your client has requested that certain material be incorporated into their web site you should seek an indemnity from your client that the material does not infringe the copyright of any other party otherwise you could be sued for, amongst other things, copyright infringement.
Issues such as where the web site will be stored; what backup facilities are available; will the web site be maintained and publicised by the developer; and who is liable for losses incurred due to down time amongst other points should all be covered in your Development Agreement to ensure that you can get the most out of your site without the need for continual dispute resolution.
If you are using your web site to conduct business, consider the restrictions on offering goods and services for sale in foreign countries. The French Government is taking action against an American university for having contravened the French law that all offers to sell goods and services in France must be translated to French if they are offered in a language other than French. A number of US cases have decided that by conducting business via the internet, you are deemed to have a commercial presence in the state where the business occurred and you can be sued there. Although these decisions related to transactions occurring within the US, it not inconceivable that the same could be applied to a party outside the US.
Have you conducted searches to see if your domain name infringes any trademarks? Have you conducted those searches in the US. There have been many recent cases of individuals registering domain names which suggest an affiliation with a well known corporation which they hope to sell to the corporation in question. As found in Panavision International v Toeppen this practice can violate the US Federal Trademark Dilution Act. Mr Toeppen was ordered to stop using the trademarks “Panavision” and “Panaflex” as domain names and to transfer the registrations of the domain names “panavision.com” and “panaflex.com” to Panavision International. Interestingly, Toeppen who is a resident of Illinois was sued in a California Court as his infringement was directed at a Californian business.
WHITE SW COMPUTER LAW
© White SW Computer Law 1997
This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.