Legal Issues For Creating And Maintaining Your Website

by Fraser Trebilcock

The reach and impact of the internet is well known and it provides a must-have medium to advertise, promote, and conduct business.  Setting up and maintaining your website may seem like a relatively straightforward process, but just under the surface lie a variety of legal issues and even potential minefields that should be taken into consideration in order to protect your business online.

In this day and age, nearly every business has an online presence, but too many businesses merely copy Privacy Statements, Terms of Use,  and other content. Unbeknownst to them, many businesses do not properly address intellectual property issues on their websites. The intellectual property issues that should be considered generally fall into three main categories:

  • Knowing what content, graphics, and other materials should be protected on your website.
  • Making sure that the Privacy Statement, Terms of Use, data extraction, and other provisions adequately comport with the scope and purpose of your business.
  • Making proper use of trademark symbols and other intellectual property notations  in a way that provides protection and limits risk.

It is important to review your website to make sure it is in full legal compliance – for your protection and to mitigate any legal risk associated with business that you conduct on your site. Here is a look at some critical issues to get you started:

Content, Graphics and IP Protection:

  • Have you properly identified and protected any copyrightable content and trademarks?
  • Have you properly identified company affiliations, sponsorships, etc.?
  • Have you made sure to exclude any trade secret information?
  • Have you included import and/or export compliance guidance?
  • Have you checked to ensure you do not have any potential infringement issues?
  • Do you regularly police your competitors website to insure that someone is not trying to profit off of your content or the look-and-feel of your website?

Website Provisions (Privacy Statement, Terms of Use, etc.):

  • Do you have adequate disclaimers for changing content and reliance by consumers?
  • Do you have adequate provisions for legal jurisdiction, venue, and choice of law based on where you conduct business?
  • Is your Privacy Statement consistent with U.S. and international laws, especially when it comes to compiling data on consumers? Some examples may include the age of your consumers, information you collect, how you collect it, and how you use or share the collected information, consumer opt out options.
  • Is your Terms of Use consistent with the scope of your business? Some examples are third party postings, use of content, legal notices related to intellectual property owned by you, and any potential liability regarding contracts (sales, warranty, returns, access, etc.), lotteries or games.

Usage of Intellectual Property on Your Website:

  • Have you properly referenced your patents according to the Virtual Marking statute under U.S. Patent Law?
  • Are you using your trademarks properly? Prominent, distinct, used as an adjective or adverb – NOT used as a noun or verb.
  • Do you have the proper public legal notifications in place for your intellectual property? A copyright notice that comports to U.S. and international law; trademark symbols, patent pending vs. issued patents, etc.
  • Are you following the proper confidentiality guidelines for new technology? Be careful not to describe new technology in too much detail before seeking intellectual property protection.
  • Have you applied or are you in the process of legally protecting your intellectual property BEFORE publication of the same?


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fraser Trebilcock | Attorney Advertising

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