January 19, 2012

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Protect Your Internet Business’ IP

Bryan C. Bryner

January 19, 2012

The Internet provides fertile ground for growing new businesses due to its easy access, wide reach and often low start-up capital requirements. But for an Internet business offering a product or service not offered elsewhere, the Internet’s low barrier to entry can also lead to the business’ downfall. That’s because the business may have to compete with others who have easily imitated or copied its unique business concept. While many measures can protect a unique Internet business, including contracts, click-through agreements and technology innovations, there are three basic elements of intellectual property that can help protect and preserve the unique identity and features of an Internet business. 1. Protect the Business Idea and Concept Business method patents provide the only means to prevent imitation of your business concept. It can protect a unique business idea, concept or overall business model from imitation by competitors, provided the idea is patentable. It could also protect specific functional components or features of an Internet business and website. Amazon.com’s patent for its method of “1-click” shopping is an example. In 2008, a federal court in the case of In re Bilski changed the requirements for obtaining a business method patent. The new requirements are much stricter and have narrowed the availability of business method patents for Internet businesses. Bilski has been appealed to the U.S. Supreme Court, which is expected to issue an opinion this spring. The extent to which business method patents will offer meaningful protection to Internet businesses will depend on whether the Supreme Court maintains or relaxes Bilski’s strict requirements. Since the law is in flux, obtaining a business method patent could be difficult. Business method patents currently suffer from a five-year pendency, on average, in the patent office, a delay often too long for the fast-changing Internet. Regardless of how the Supreme Court rules, business method patents will continue to offer some protection for Internet businesses, whether for the entire business concept, for specific features or elements of a website, or both. 2. Protect the Brand Establishing and protecting the business’ brand is just as important as protecting the business’ idea. Even with patent protection, establishing and protecting a good brand early on is critical to a startup Internet business’ success. An established and recognized brand can maintain the business’ lead in the face of new competitors, so the need to protect it cannot be understated. This is done through trademark and trade dress law. A trademark is generally a word, name, symbol, logo or sound used to distinguish the goods or services of one provider from the goods or services of another. An Internet business may have one or more different trademarks covering various facets of the overall brand, such as: - the business name - specific product names - the domain name - slogans and phrases - logos or symbols A trademark used on a website may be protected by common law trademark rights without any formal registration of the trademark. However, registering a trademark with the U.S. Patent & Trademark Office confers significant advantages, such as nationwide scope and protection of the trademark, and preventing competitors from using it in their keyword advertising. But consider whether to register the domain name as a trademark. A domain name may be registered and protected by trademark law only if the domain name is used as a trademark to identify the business or its goods or services, and not just as a website address. Using and protecting a domain name as a trademark may prevent others from using confusingly similar domain names. Like a trademark, a website’s “trade dress” may also protect the business’ brand. A trade dress is the website’s look and feel, i.e. overall design, color and other nonfunctional elements of appearance. Trade dress law offers protection similar to trademark law. But because it is relatively new as applied to websites, seeking it requires careful planning upfront to properly develop the website for trade dress protection. While trademark rights cannot prevent competitors from imitating the overall business concept, they prevent imitation of the trademarks and confusion caused by unauthorized use of the trademarks and helps prevent others from diverting traffic away from the business’ website. 3. Protect the Content An Internet business should also protect the content of its website under copyright law. Websites often contain significant amounts of informative text, graphics, images, artwork, photographs, sound and video. The layout, design and even source code of a website may also be protectable under copyright law. While it is not necessary to register a website to be protected by copyright law, registration is necessary to sue for infringement and provides numerous advantages in an infringement suit. Registration of a website should involve registration of the content as displayed by web browsers as well as the website source code. Updates and revisions to a website are not covered by an original registration, but require separate registration. Also, a business may want to register only major or significant updates to keep costs low, if the Website is updated often. Obtaining and enforcing these intellectual property rights can help maintain the business’ position and strength in the market, even in the face of increasing competition. Bryan C. Bryner is an attorney at Smith Hartvigsen, PLLC. He can be reached at bbryner@smithlawonline.com or (801) 413-1600.
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