CREATING AN ONLINE BRAND FOR YOUR PRODUCT
By Alan Lowenthal, Esq.
So, you want to market and sell your product or service online? You’ve found a web designer that will set up your site, including product descriptions and payment methods. Before you pull the trigger, there are several important legal matters that require your attention. Not focusing on them early on can prove very costly down the road. Now’s the time to get your intellectual property, cybersecurity, marketing and contract house in order.
1. Identify Your Marks and Conduct a Clearance Search
Identify unique names and marks that you want to consider part of your brand. Conduct a trademark search of those terms on the U.S. Patent and Trademark website to determine if someone else has already registered them for the same or similar type of product or service you plan to offer. Also, conduct a general Google search to find out to what extent your planned marks are being used even though they’re unregistered. Prior users of these terms (even if not registered) will give them greater rights to continue using them for commercial purposes. Your use of another’s trademark (or a confusingly similar mark) can create lots of issues you won’t want to have to address in the future. A search will identify the risks of registering and using your desired marks. Once a mark has been selected and cleared, you should consider pursuing federal registration. Possessing a federal trademark registration has important benefits, including legal presumptions that allow you to protect your marks, and expanded remedies in the event of an infringement.
2. Use of Third-Party Content
Avoid using another party’s trademarks and copyrighted content. Special care should also be used before posting user-generated content. All material appearing on a third-party site needs to be carefully reviewed. Despite the existence of specific safe harbors under the Digital Millenium Copyright Act and the Communications Decency Act for secondary liability based on infringing user-generated content, your use of another’s content, unless it’s considered in the public domain, will likely require obtaining the site owner’s written consent.
3. Address Cybersecurity and Privacy Issues
If your company will be collecting personally identifiable information (PII) and/or payment information from your customers, you will need to have an effective cybersecurity process and privacy policy in place. The privacy policy should specifically lay out the data that will be collected, how it will be used, safeguards in place to secure the data, and the circumstances the data will be shared with anyone else. How the data is collected, retained and protected must comply with numerous federal, state, and if marketing overseas, international laws.
4. Marketing
There are numerous state and federal regulations that impact the marketing of your product or service. These include prohibitions on making deceptive, unsubstantiated claims about your product or service. Online offers and marketing materials are increasingly being examined by the Federal Trade Commission. To the extent your marketing includes comparative claims touting your product ‘s virtues versus your competitors’, these claims need to be accurate and supportable with sufficient substantiation. Federal regulations also govern the use of influencers on your website and in social media. Also, be aware that combining public domain materials with your original content can create a new hybrid work eligible for copyright protection.
5. Contract Terms
Just because you’re selling online doesn’t mean you don’t need carefully thought-out terms and conditions for the sale transaction. Warranty, product returns/exchanges, refund policy, and limitations on liability should all be included to mitigate legal risks to your business. Your customers’ clear acceptance of these terms needs to also be included.
Be sure to consult with an experienced marketing attorney to ensure compliance with applicable intellectual property, privacy, and marketing laws before implementing your online business.
You can reach Alan Lowenthal at alan@henriespllc.com
© Henries PLLC 2024. This Blog is for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. Henries PLLC assumes no liability in connection with the use of this publication. Please contact us at monique@henriespllc.com if we can be of assistance regarding the discussed subject matter.