As the year draws to a close, December is our month for annual client reviews. We recommend that all of our clients conduct an annual legal review of their existing policies, procedures and content and, in general, there is no better time then the end of the year.
The following are some of the areas we consider in our review.
1. Review Terms of Service Read your Terms of Service. Look for things that are outdated, that you don’t do any more or which have changed. Look closely at your guarantees, payment terms, and agreement term and termination provisions. If you have one, include your acceptable use policy in your analysis. Mark it up and send your comments to your lawyer for review and incorporation into your TOS or an explanation as to why the change is unnecessary or ill advised. Generally changes that make sense to you will also make sense to your lawyer. There are instances where this is not true so clear anything of substance with experienced Internet counsel.
2. Review Privacy Policy Read your Privacy Policy. Make sure that it still reflects your privacy practices. Be certain that you are doing what you promise that you are doing. Speak with your tech people directly if you are uncertain. Be sure they are familiar with your policy. Make any changes that seem to make sense to you and have them reviewed by your lawyer.
3. Evaluate Trademarks Verify your trademark status with the USPTO. Search the Internet for your company name and domain names to see if anyone is improperly using your marks or anything confusingly similar. Examine your own site for any use of trademarks that you do not own or have the right to use.
4. Evaluate Domain Name Portfolio You may own your domain name but not the right to use it. Take a look at last month’s column for the specifics of this one but the idea is that you should consider whether your use of any domain name is violating someone else’s right to the exclusive use of the name. Consider registering your domain name as a trademark and other things that you can do to protect your mark.
While it is generally not necessary to register domain names in all top level domains, collecting the most common ones is an easy way to make sure that you don’t get stuck in a legal battle to get it away from someone that tries to use it. Review your Domain name portfolio from a legal standpoint. Pay attention to your expiring domain names. Strongly consider automatic renewal options. Consider options such as private registration available from your web hosting company.
5. Update Copyright Designations Update your copyright designations throughout your website. Update the year and if you have changed the name of your company or changed your corporate structure be certain to include the proper designation. Is there an aspect of your website that is subject to copyright protection? Consider whether registration would offer you any protection.
6. Update Trademark DesignationsIf you have achieved formal registration for any of your trademarks during the year make sure that your registration is properly designated with the ® symbol. If you claim the right to a mark that is not yet registered you may be able to use the TM symbol depending upon the requirements of your particular State.
7. Review UDRP Agent DesignationsVerify your agent for notification of claims with the United States Copyright Office at http://www.copyright.gov/onlinesp/list/index.html. Registration in addition to strict adherence to your DMCA notice policy is necessary to take advantage of the Safe Harbor Provisions of the DMCA. If you do not have a policy in place, contact your lawyer to determine whether such a policy and registration is necessary.
8. Review Marketing Creative Consider your current marketing activities. Have you added or changed your campaigns since your last legal review? Has your current creative been approved by legal? Are you in compliance with all existing State and Federal laws concerning E-Mail, text messaging, telephone marketing, affiliate programs, lead generation, contests and sweepstakes.
9. Review Website for IP violationsTake a look at your own website with an eye towards the use of any material that belongs to anyone other than you which you have not secured the legal right to use. Consider text, photographs, logos, company names, artwork, music, and video. If you have questions about your use of any items seek the advice of your Internet lawyer.
10. Update your Business PlanWe often assist our clients in a consulting role to develop a comprehensive business plan at the commencement of a new business. Significant time, effort, thought and energy is put into the process. Our most successful clients take the time now and then to refer back to their business plan and update it to reflect the current status of the company from several important perspectives. It is an opportunity to take stock of the past year and determine what goals have been met and evaluate those that have not. It is an opportunity as the year closes to think about the coming year ahead, set new goals for yourself and your company and those around you.
Copyright (c) 2010 – InternetLitigators – All Rights Reserved.
Jeffrey A. Cohen is a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.
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