MN News Network Feature Report:
Protecting Web Sites 

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This page provides additional information as a follow-up to a recent  interview by the Minnesota News Network, which aired on radio stations across Minnesota this month.

Can Web Site Content be protected? Which aspects of a web site can be protected? How do I know if someone else has a superior right?

What can I do if someone is using material or trademarks from my web site? What is the difference between copyrights, trademarks, and patents? What other issues should I consider when building a web site?

Can Web Site Content be Protected?
Yes.  Trademark, Copyright and Patent laws protect your web site content from being ripped-off by others.  

Trademark law protects business and product names, logos or other symbols used to identify one brand from another.  Protection is automatic in the US once you actually begin using the trademark.  In other countries protection does not begin until you register the trademark.  

Copyright law protects the text, graphics, layout, sound files and other elements of your web site.  Any creative expression becomes protected automatically under copyright law the moment it has been "fixed" in some medium.  For example, fixation can occur when you write something down on paper, record a mp3 file, or when your computer stores text that you've written with a word processor or other application.

In the case of copyright and trademark protection, you do not need to register in order to obtain a basic level of protection.  However, registration provides many benefits that will help you enforce your rights.  In particular, a registration can maximize your effectiveness in stopping others from stealing your we site content

In rare instances where your web site involves unique inventions or methods, you may also consider seeking patent protection, which doesn't exist unless you register your patent.  

What aspects of my web site can be protected?
A web site can contain many different features that are legally protectable:

• Text 

• Photos and drawings

• Overall "look and feel" of the site (i.e. the selection, coordination and arrangement of elements)

• Sound files

• Java or other Programs

• Domain names

• Trademarks used on the site

What is not protected on a web site would be any generic elements that are not original creations, facts and data, and any trademarks or patents that in which someone else owns a superior right.  

How do I know if someone else has a superior right?
If someone has a right superior to yours in either a copyright, trademark or patent, they could sue you for infringement and force you to immediately stop  using the item in question.  Even worse, they might force you pay monetary damages for that infringement.

In the case of copyrights, all you have to worry about is to avoid copying another person's work.  As long as you independently created the creative work, and can prove as much, then you should prevail in any claim of copyright infringement, even if you have independently created something identical to someone else's work.   

With trademarks and patents, it doesn't matter if you independently invented a name, or other protected work.  As long as your trademark or invention is sufficiently similar to a work that existed prior to yours, you may be infringing the prior right.  To avoid this, you should conduct a search of already-existing trademarks and patents.  Ideally, you would conduct a search and obtain a legal opinion for any business name, product name, or domain name.  Similarly, you would want to conduct a patent search, if you created a new and unique invention for navigating, operating or interacting with your web site.  

What can I do if someone is using material or trademarks from my web site?
You should first decide whether it is in your best interest to get the offending party to quit their copying.  In some instances, you may not care whether your work is copied or not -- indeed, you may feel that the copying aides your professional development.  However, in the case of trademarks and patents, you do not have the luxury of deciding whether or not to enforce your rights.  If you fail to police and enforce your rights, you may be deemed automatically to have abandoned your rights altogether.  

The typical process for enforcing your rights against another party is to inform them that you will not tolerate their use of your works and give them a modest timeline in which to report back that they have ceased all uses and/or destroyed all offending materials.  This is most often done in a cease and desist letter.  In some instances, it is risky to send a cease and desist letter without first filing a lawsuit, because you may open the opportunity for the other party to sue you in their own state or district before you have the chance to sue them in your own state or district.  Thus, you are well advised to seek legal counsel before sending any such letter, or making any claims of infringement.

Registering a trademark or copyright before you discover infringement is particularly beneficial when it comes time to enforce your rights against another. Such registrations allow you far greater leverage in getting people to stop their infringing activity because a registration (1) gives you certain court advantages; and (2) allows you to obtain much higher monetary recovery if you win.  

What is the difference between copyrights, trademarks, and patents?

Copyrights protect creative expressions such as paintings, writing, music recordings and compositions, etc.  In order to qualify for copyright protection, you must have independently authored the work, and the work must have be fixed in some tangible medium, such as ink on paper, text stored in computer memory, clay shaped into a form, sound recorded on magnetic tape or an mp3 file. 

Trademarks protect business identity and goodwill that can be found in brand names, drawings, color schemes, sounds or any other symbols used to help customers identify  one company as distinct from another company.  Trademarks are protected in the U.S. the moment they are used in interstate commerce.  Nonetheless, enhanced protection and additional benefits exist if for those trademarks that are registered.  Not all trademarks have the same legal strength, nor can all trademarks be registered. For this reason, you are well advised to seek legal counsel at the name choosing stage.

Patents protect inventions, methods or processes that are unique, non-obvious and new.  

What other legal issues should I consider when building a web site?
A web site can be simple to create, but may have long-reaching legal impact for the business owner. 

No longer is there any question whether the laws of a given state or country can be enforced in the cyber world;  they certainly can be enforced.  Thus, all the regulations that you must endure at the city, county, state and federal government levels, still exist when you conduct business exclusively over the Internet.  Even worse, an increasing array of new laws apply to business activity on the Internet that do not have application in the physical world.  Seeking the advice of legal counsel could benefit you greatly in avoiding becoming ensnared in legal entanglements outside your particular state.

date:  11/1/00