If you are creating a website for your company or business there are some important intellectual property matters to take into consideration before doing so. According to the lawyers at the Florida intellectual property law firm of Allen, Dyer, Doppelt + Gilchrist, there are important things to consider before your website goes “live.”

Before you proceed with any launch, you should do some trademark research to ensure that you are not infringing any other person’s trademarks. Attorney Jaafar Choufani explains: “there may be no such thing as a 100 percent clear trademark, there will likely be major differences in risk among various candidate marks. You should run some initial searches to see if anyone is already using the same or a similar name for a related product or service.” If you find someone else using a similar mark, you should consult with a trademark attorney to evaluate your risks. According to Attorney Choufani, a few dollars upfront can save you vastly more down the road.

If you have selected a common name, you may find that it cannot prevent or stop other businesses from using a similar name. It is therefore important that after you have conducted your searches that you file to register it as a trademark. Attorney Choufani explains: “a federal registration provides benefits that include a presumption of ownership and validity and the right to seek certain monetary damages. It also acts as a deterrent to others adopting a similar name. Make sure your application covers all of the products and services you hope to offer within the next few years. Apply in other countries where you expect to operate.”

Once you have selected a trademark and began the process of protecting it you will need to go register the corresponding domain name. If it is already taken, the owner of that domain name may be willing to sell it to you. Attorney Choufani warns the owner will likely assume you will pay a high price for the domain name, so they demand a high sale amount. It is important to coordinate the timing of your trademark filings and any disclosure of your intended name with your purchase of domain names to ensure that both are available and affordable.

One of the most common mistakes a new business makes, according to Mr. Choufani is using pictures or graphics found on the internet. it is important to make sure you have the right to use all the content on your website and never copy and paste images or text from the internet without permission. Showing faces or using names of people to promote your business may violate those persons' rights of publicity. Make sure that you have adequate agreements in place with any third-party content providers. This includes having consultants or contractors hired to create work assign the copyright to you. An intellectual property attorney can assist you with any paperwork necessary to protect your content and receive the proper assignments from any contractors you hire.

 
Tweets and Copyrights

A court has ruled that embedding a tweet on a webpage could violate copyright — a decision that could have a wide-ranging impact on social media and publishing. According to the intellectual property attorneys at Allen, Dyer, Doppelt + Gilchrist, in Orlando, Florida, a recent court decision rejected the defense of several news outlets that embedded tweets containing a copyrighted photograph of Tom Brady, ruling they could be liable for infringement even if they weren’t hosting the image on their site.

According to Attorney Jaafar Choufani: “the case in question dates back to 2016, when a photographer posted a Snapchat Story photo of NFL quarterback Tom Brady walking with Boston Celtics general manager Danny Ainge. A number of other users tweeted the photograph, and several news sites embedded these tweets to illustrate stories about Brady helping the Celtics recruit NBA player Kevin Durant.” Goldman sued the companies for publishing the photograph without permission. Attorney Choufani explained the unique wrinkle, “the pages didn’t directly include the image — they effectively just asked Twitter to make a specific tweet appear.”

In the decision, the judge distinguished a search engine, where users voluntarily search for and click on an image from a news site where the user essentially takes no action to see a particular image. The Court reasoned that Google assists a user to navigate from webpage to webpage and that such actions are not the same as opening one’s favorite source of news such as a news outlet website or blog and find a full color image awaiting the user whether they were looking to see that image or not.

Technology experts believe this interpretation would turn a previously clear-cut safe harbor into a blurred guideline. The court did concede that embedding specific copyrighted content, including the Brady photo, might still be legal. The Court pointed to some “genuine questions” about whether Goldman’s Snapchat post effectively put his photo in the public domain and that could be a strong fair use defense for using the photo to illustrate a related story.

Beware: Embedding Links to Third-Party Web Content May Violate Copyright

A federal judge in New York City recently decided that displaying an embedded image from another server on your website could constitute copyright infringement. According to Ava Doppelt, an intellectual property lawyer from the law firm of Allen, Dyer, Doppelt + Gilchrist, “the court ruled that showing an image in this way may infringe the copyright owner’s exclusive right to “display” his work, which is a sharp turn from a similar case in California, which reached a different result.”

In the New York case, Justin Goldman took a candid photograph of Tom Brady and uploaded the photo to Snapchat. It went viral, traveling from Snapchat to Reddit to Twitter, until it ended up on the websites of the defendants (Brietbart, Time, Yahoo, Gannett, etc.) who, without permission from Goldman, embedded the Tweet in articles they published about Tom Brady helping the Boston Celtics recruit basketball player Kevin Durant. Goldman sued the defendants for infringing the copyright in his photo.

According to Attorney Doppelt, the New York decision surprised many copyright lawyers. Ms. Doppelt explains: “before this case, embedding, or “on-line linking,” was widely considered to be non-infringing, based on a California case. There, the 9th Circuit affirmed the trial court in finding that Google’s thumbnail images that pop up when a user types in a search term were infringing, since they were stored on Google’s server. The full-size images that appeared when a user clicked on a thumbnail, however, did not infringe because they were stored on a third-party server and accessed by HTML code instructions. The court’s “server test” drew a bright line, finding that a website publisher can be directly liable for infringement only if the image is hosted on its own server; there can be no liability if the image is linked or embedded from a third-party server.”

Although the New York judge refused to throw out Goldman’s lawsuit, she left the door open for the defendants to raise various copyright defenses, noting that there were “genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account…” and that there was “also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.”

Allen, Dyer, Doppelt, + Gilchrist, P.A.

Address: 255 South Orange Avenue, Suite 1401, Orlando, Florida 32801
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