Published: 07/01/2009
As we noted in an article in last month's COLORADO REALTOR® ONLINE NEWS, the Internet provides the real estate professional with tremendous opportunities to connect with buyers. However, as a result of being able to communicate more focused messages to larger audiences, it is all the more important that such real estate professionals be aware of both intellectual property and Internet-related laws that affect these online marketing activities. In last month's article, we discussed copyright laws and how they implicate the selection of content for websites and other electronic marketing campaigns. In this article, we discuss certain legal issues revolving around domain names and "linking" to other websites.
Domain Names
Domain names — which, among other things, function as the address for websites, such as "www.realtor.com" — are the unique alphanumeric addresses that people or companies use to indicate their presence on the Internet. The domain name corresponds with a unique Internet Protocol (IP) address that is composed solely of numbers that computers use to identify specific networks and devices. The domain name, however, is easier for Internet users to recognize and remember than the IP address's long string of numbers. Furthermore, by having a separate domain name that corresponds with an IP address, people or entities can retain their domain names even when they move their websites to different physical locations so long as they change the IP address (and the corresponding translation of this IP address to and from its domain name).
Due to the ease with which domain names are recognized and remembered by Internet users, one of the most important considerations when creating a website is the selection of the domain name. Typically, people and companies choose one or more first- (or top-) level domain names (common first- or top-level domain names are ".com," ".net," ".biz," ".org," ".gov," and ".edu" but there are others as well) at the same time they select the second-level domain name (the word or words that are to the immediate left of the top-level domain name, such as the word "rothgerber" in the "rothgerber.com" domain name). It is the selection of the word or words for the second-level domain name that frequently gets people into legal trouble.
When selecting your domain name, you will probably first want to find out if the proposed name, which is often your corporate name or your product and/or service name, is still available. If seeking a name from a top-level domain, most people first conduct a WhoIs (pronounced "who is") search. You might find that your proposed name has already been taken. Generally, there is little that you can do because the party who has taken such domain name often has equal rights to use it. However, there are situations in which you might want to contest another's registration of a domain name, either through the domain name registrar's dispute policy or through the courts, where you and your legal counsel have concluded that you have superior rights to the name.
After making sure that the name is, or will be, available, it often then behooves you to commission a trademark search, especially where you will be committing a lot of time and money to creating recognition of, and goodwill associated with, your website's domain name. Such trademark searches typically cost about $600, but this might prove to be money well spent; namely, you do not want to devote a lot of resources to cultivating your website just to receive a "cease and desist" letter at some point in the future. (Note that this concern about not infringing on others' trademark rights through use of a domain name is equally applicable to use of words, images, slogans, and other devices that identify the goods or services of another — i.e., trademarks — within the content of your website. You should avoid using another's trademark[s] in a manner that might cause website visitors to be confused as to [i] the source of your products and services or [ii] your website's being approved by, affiliated with, or sponsored by another party.)
If you were to find that the domain name is available and that the trademark search uncovers nothing problematic, then you would typically file your domain name with the domain name registrar — often InterNIC — using their on-line registration form. This is a simple online procedure and the fee is minimal.
Once you have filed your domain name registration, you can better protect your domain name (remember, others might themselves challenge your ownership through the domain name registrar's dispute policy or through the courts) by registering the domain name as a trademark with the U.S. Patent and Trademark Office. The important thing to remember here is that the domain name itself must be used as a source identifier — i.e., identifying from whom the goods or services are provided — and not just a location identifier — i.e., where the website is located.
Linking and Framing
Links allow Internet users to move from one point on a website to another point on the same website, or from one website to a completely different website, in a seamless, efficient manner. Links typically appear on the websites as underlined words in different colors, but they might also appear as logos, icons, and the like. When you click on a link, you are connected behind the scenes to a web browser that retrieves the linked webpage for display on the Internet user's screen. Unfortunately, linking can get you into legal trouble.
When the link on which an Internet user is clicking is a logo or icon that constitutes another's trademark, you run the risk that the trademark owner will bring a trademark action against you. As noted above, you should avoid using another's trademark(s) in a manner that might cause website visitors to be confused as to your website's being approved by, affiliated with, or sponsored by another party. To reduce your risk here, you should consider using the plain text name (underlined, in a different color) as the link. And you should probably let the linked to website speak for itself rather than attempting to describe such website to avoid any claims of inaccuracy or misrepresentation.
Furthermore, when the Internet user clicks on a link in your website and the web browser retrieves an image from another website, the Internet user typically sees the image in combination with your webpage's text; thus, you might have contributed to creating an unauthorized "derivative work," which would constitute copyright infringement. To avoid this situation, you should obtain permission from the other website owner prior to including links on your website to images found on their website.
For similar reasons, you should also be careful when using framing techniques on your website. Website creators use frames to subdivide web pages into multiple parts, such as when you display an index for your website in one frame and the content pages for your website in a second frame. However, if you use frames to show webpage from two different websites at the same time, the Internet user might be confused as to which party owns the content or whether your website is approved by, affiliated with, or sponsored by the other party. Obviously, this exposes you to potential copyright and/or trademark infringement claims, among other things.
When linking to another website, it is important to know whether you are linking to the other website's home page or to an internal page. By linking to an internal page, you might be undermining the other website owner's efforts to obtain advertising revenues as well as enabling Internet users to bypass the other website's "Terms and Conditions of Use" page. Thus, especially where you intend to link to another website's internal pages, you should consider obtaining the other website owner's permission.
Lastly, you should include some form of "Terms and Conditions of Use" statement on your own website. Such terms and conditions of use should address, among other things, trademark, copyright, and content issues, as well as disclaimers regarding the linked-to websites. Such Terms and Conditions of Use documents must be carefully drafted and implemented to increase the odds that they will be enforceable, but those issues are beyond the scope of this article and will need to be addressed at a later date.
For more information, please contact RJ&L partner, Dick Clark at 303-628-9531 or rclark@rothgerber.com.