OpenUp - How To Guides - eBusiness Law: a Practical Guide for Irish Companies

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2. Setting up your website

Your website may be no more than an online corporate brochure. But it could also be an important channel to allow your company to sell goods or services and enter new markets.

Whatever its purpose, businesses need to be conscious of the legal consequences of managing a website and doing business online. This section of the guide explains:

How disputes over domain names can be resolved
The legal implications of publishing copyright material
Online marketing and your legal obligations
Distinctions between B2B and B2C transactions

a Domain names
Registering a domain name is an important step in building an online business or promoting an offline one. Full details on how to register a '.ie' domain name is contained on the website of the body which administers that name, the IE Domain Registry. Further afield, the '.eu' domain may also be appropriate to your business if you have clients or customers in the European Union. Details of how to register a .eu domain are available from The European Registry of Internet Domain Names.

Most businesses will have heard horror stories of companies that discover their name or product names have been registered by others as domain names. Any entity with a real and substantial connection with Ireland can use the '.ie' domain, and there are equivalent rules for '.eu', while the '.com' domain is registered on a first-come, first-served basis.

This opens up the very real possibility that even if you have registered your company name on the '.ie' domain - eg, www.irishproduct.ie - another company could seek to profit from your reputation by registering the www.irishproduct.com domain.

However, the registration policies for all these domains include a requirement that, if there is a dispute over a registered name, you submit to administrative procedures for resolving it. A dispute over a domain name arises most often when the name is identical to or very similar to a trade mark. If a trade mark holder feels aggrieved by this, he can initiate a complaint against the body using the domain name. Such complaints are normally made to the World Intellectual Property Organisation, which appoints a panellist to hear the case and make a finding. Complainants will need to show that

The domain name is identical or confusingly similar to a trade mark in which they have a right
The domain name holder has no rights or legitimate interests in the domain name, and
The domain name was registered and is being used in bad faith

The costs associated with taking a claim to the WIPO currently start at US$1,000 and decisions are normally made within two months. If the complaint is proven then the domain registry (or registrar) is bound to follow the order in the decision and this means that the domain name is usually transferred to the complainant.

b Copyright and Trade Marks
Under the Copyright and Related Rights Act 2000, a copyright owner can restrict the right to make available copies of the protected work on the Internet. The unauthorised use, therefore, of copyright material online can breach the owner's rights. An employer may be held liable for the deliberate breach of copyright by an employee, it is important that your workplace internet policy alerts employees to the risks associated with forwarding copyright material.

Remember also that graphics and logos can also be protected by copyright or by a trade mark. Unauthorised use of these on your website can also lead to claims for breach of that right.

A breach may occur if you use another company's trade mark (or even something similar) which may lead to confusion by members of the public. For example, any Association that implies endorsement of your business or product or service by the trade mark holder could constitute a breach if not expressly authorised. If in doubt, ask for permission.

If you include third party trade marks on your website to attract visitors you are in effect relying on the reputation of these better known trade marks to attract visitors to your website. These visitors may be searching for the copyright or trade mark holder's website. When not authorised, this amounts to "passing-off". This means that you are implying that you are either associated with the holder's business or an authorised user of its trade marks. Again, if in doubt, ask for permission.

If material which infringes copyright is being carried on an outside service (for example, if your website is being "hosted" on the computers of your Internet Service Provider), the rights owners often enforce their rights by way of what is called the 'notify and take down' procedure. They inform the service providers that the infringing material is being carried on their service, and the service providers are obliged to remove that material as soon as is practicable.

Also, remember that you need to protect your copyright materials on your own website. Your site's terms and conditions should reference the fact that your business is the copyright owner (see example in interactive graphic).