It seems like everyone is launching e-commerce sites lately on google to sell a wide range of products and services. The promotions out there make it sound easy. Just go to GoDaddy and get a domain, use their handy do it yourself website kit, and you are good to go.
Well, it is not as easy as it seems from both a legal and business standard. Most website unfortunately fail or end up in a media limbo land with no traction until finally they die by forfeiture, i.e., their domain lapses for failure to pay/renew.
So, what are the key legal obstacles faced by e-commerce websites? Here are a few takeaways from an experienced Houston e-commerce attorney:
1. Getting a domain doesn’t mean you own the domain.
That sound like double-speak but it most certainly is not! Most people are totally unaware that a domain just gives you the right to operate a specific domain if it is available and only the e-commerce identifier, i.e., .com, .net, etc.
The domain even if it sounds original needs to be checked for availability with the USPTO – the United States Patent and Trademark Office. This is critical as another person or company could own the trademark rights to use the precise name that you are using for your domain. If so, the holder of the trademark could force you at any time to take down your domain not to mention sue you for infringement damages.
As an examples, let’s say you get a domain for www.buydrakescakes.com. I am not sure if it is available or not but there is a company which sells Drake’s Cakes and I am almost sure it is trademarked. Let’s day, Mr. Drake in Sugarland sells his cakes in local restaurants and builds a good business over years of hard words to over six figures. It is quite possible that he could receive a cease & desist letter from the owner of the trademark, Drake Cakes, to stop using the mark or even an immediate lawsuit. Aside from forcing good ole Jake to stop using his domain they can force him altogether to stop using “Drakes Cakes” in any of his branding. For all intents and purposes, Jake’s business is ruined and destined for almost immediate failure.
The moral of the story here is to consult with a Houston Trademark Attorney to determine if the suggested domain infringes on a registered trademark. This is not complex for a trademark attorney or even expensive.
2. Protection of the content and look and feel of your website.
This is extremely important. Let’s say you spend the time to come up with a unique design for your website including the description of your product, photos, and the graphic design and even color of the site. To your great pleasure, it looks great and is a hit.
Unfortunately, you discover a few months later that a website in Houston or another location in Texas (or even another state) has ripped off your content and hard work. You send them a letter drafted by yourself or pulled off the web. They tell you to take a flying leap.
Most likely, without the services of an experienced Houston e-commerce attorney – they will win. The reason is that you have not protected your intellectual property rights (IP) from being stolen.
A Houston e-commerce attorney would recommend that the content and pictures be copyrighted with the U.S. Copyright Office in Washington. This will protect your IP from being stolen and allow you to compel the infringing party to take down the unlawful website material which was posted without your permission. If they refuse, you are entitled to substantial damages including attorney’s fees.
3. E-commerce contracts.
Don’t even go there without a Houston e-commerce attorney. These contracts need to be precise and drafted in accordance with Texas and U.S. law. If not, they are not only unenforceable but potentially dangerous as you or your company could be sued. And never copy and paste an e-commerce contract you found on the web. They are invariably horrible and unenforceable.
As a Houston e-commerce attorney with extensive experience representing e-commerce startups, I recommend that anyone starting up a new business get good legal advice.
At the Moster Law Firm, we are here to help. E-commerce is definitely our sweet spot.
Give us a call for a complimentary consultation.