d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plai

1. DOMAIN NAMES

a. Before you register a domain name, be sure to check for existing trademark registrations. If you don’t, and there is a pre-existing trademark, your domain name may be taken away from you.

i. Check the California business-name list.

ii. Conduct a search of the federal trademark register.

iii. Perform an Canadian search.

iv. Also do a Dialog or similar search for state and business-name registries.

b. Even if you obtain a domain name, you may lose that name if you do not use it for a real website. (A pure “under construction” page will not suffice, so get some sort of content and contact information on the site.)

2. LINKING AND FRAMING

a. Several website owners have been sued because their sites either a) linked to other Web pages without appropriately identifying the target page or b) framed other sites so that it seemed like someone else's Web page was part of the framing website.

b. Basically, the problem is one of misidentification: the offending website links or frames in such a way that the viewer doesn't realize who really owns the target site. Similar to plagiarism, it's taking credit either expressly or by implication for Web pages other than your own.

i. For example, linking without attribution was the basis of the Ticketmaster Corp. v. Microsoft Corp. case. There, Ticketmaster sued Microsoft for using links that took users directly to the ticket-sales pages of Ticketmaster's site, circumventing advertising and Ticketmaster's home page.

ii. Framing was the issues in Washington Post v. TotalNEWS, Inc. There the complaint alleged that "Specifically, Defendants' website is designed to feature the content of Plaintiffs' and others' websites, inserted within a "frame" on the computer screen that includes Defendants' totalnews.com logo and URL as well as advertising that Defendants have sold." Obviously, the defendants were trying to make Washington Post content look like their own.

c. So what should you do?

i. Well, the most conservative course is to either:

(1) get permission for every link or

(2) link only to other folks' pages where those pages themselves clearly identify the owner and contain any advertising that the owner uses.

ii. This approach is not practical in most situations, of course. Where it's not, at least do the following:

(1) When you insert links in your Web page, make sure they identify (correctly) the owner and name of the target page.

(2) If you use framing to pull up other folks' Web pages within your own, make sure you don't imply in any way that the site within the frame is yours.

(3) If a site has a linking policy posted, be sure to follow it.

3. TRADEMARKS AND TRADE NAMES

a. Another set of problems arises from using someone else's trademarks or trade names as part of your website, either in the main text or in "metatags".

b. Metatags are key words and phrases used to help search engines categorize a website; they are normally hidden from the user's view, although they are in fact part of the website. When a user performs a Web search using one or more key words or phrases, some search engines prepare a list of sites based on matches with the metatags embedded in those sites. Some search engines also analyze the readable text of websites in their matching functions.

c. Here the problems have arisen where a website uses others' trademarks or trade names or a competitor's trademarks or trade names to draw traffic to its site. (This is not limited to officially registered trademarks: Even if a name isn't registered, the owner may have rights in the name simply from using it.)

d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plain

2. LINKING AND FRAMING

a. Several website owners have been sued because their sites either a) linked to other Web pages without appropriately identifying the target page or b) framed other sites so that it seemed like someone else's Web page was part of the framing website.

b. Basically, the problem is one of misidentification: the offending website links or frames in such a way that the viewer doesn't realize who really owns the target site. Similar to plagiarism, it's taking credit either expressly or by implication for Web pages other than your own.

i. For example, linking without attribution was the basis of the Ticketmaster Corp. v. Microsoft Corp. case. There, Ticketmaster sued Microsoft for using links that took users directly to the ticket-sales pages of Ticketmaster's site, circumventing advertising and Ticketmaster's home page.

ii. Framing was the issues in Washington Post v. TotalNEWS, Inc. There the complaint alleged that "Specifically, Defendants' website is designed to feature the content of Plaintiffs' and others' websites, inserted within a "frame" on the computer screen that includes Defendants' totalnews.com logo and URL as well as advertising that Defendants have sold." Obviously, the defendants were trying to make Washington Post content look like their own.

c. So what should you do?

i. Well, the most conservative course is to either:

(1) get permission for every link or

(2) link only to other folks' pages where those pages themselves clearly identify the owner and contain any advertising that the owner uses.

ii. This approach is not practical in most situations, of course. Where it's not, at least do the following:

(1) When you insert links in your Web page, make sure they identify (correctly) the owner and name of the target page.

(2) If you use framing to pull up other folks' Web pages within your own, make sure you don't imply in any way that the site within the frame is yours.

(3) If a site has a linking policy posted, be sure to follow it.

3. TRADEMARKS AND TRADE NAMES

a. Another set of problems arises from using someone else's trademarks or trade names as part of your website, either in the main text or in "metatags".

b. Metatags are key words and phrases used to help search engines categorize a website; they are normally hidden from the user's view, although they are in fact part of the website. When a user performs a Web search using one or more key words or phrases, some search engines prepare a list of sites based on matches with the metatags embedded in those sites. Some search engines also analyze the readable text of websites in their matching functions.

c. Here the problems have arisen where a website uses others' trademarks or trade names or a competitor's trademarks or trade names to draw traffic to its site. (This is not limited to officially registered trademarks: Even if a name isn't registered, the owner may have rights in the name simply from using it.)

d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plai

c. So what should you do?

i. Well, the most conservative course is to either:

(1) get permission for every link or

(2) link only to other folks' pages where those pages themselves clearly identify the owner and contain any advertising that the owner uses.

ii. This approach is not practical in most situations, of course. Where it's not, at least do the following:

(1) When you insert links in your Web page, make sure they identify (correctly) the owner and name of the target page.

(2) If you use framing to pull up other folks' Web pages within your own, make sure you don't imply in any way that the site within the frame is yours.

(3) If a site has a linking policy posted, be sure to follow it.

3. TRADEMARKS AND TRADE NAMES

a. Another set of problems arises from using someone else's trademarks or trade names as part of your website, either in the main text or in "metatags".

b. Metatags are key words and phrases used to help search engines categorize a website; they are normally hidden from the user's view, although they are in fact part of the website. When a user performs a Web search using one or more key words or phrases, some search engines prepare a list of sites based on matches with the metatags embedded in those sites. Some search engines also analyze the readable text of websites in their matching functions.

c. Here the problems have arisen where a website uses others' trademarks or trade names or a competitor's trademarks or trade names to draw traffic to its site. (This is not limited to officially registered trademarks: Even if a name isn't registered, the owner may have rights in the name simply from using it.)

d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plai

(3) If a site has a linking policy posted, be sure to follow it.

3. TRADEMARKS AND TRADE NAMES

a. Another set of problems arises from using someone else's trademarks or trade names as part of your website, either in the main text or in "metatags".

b. Metatags are key words and phrases used to help search engines categorize a website; they are normally hidden from the user's view, although they are in fact part of the website. When a user performs a Web search using one or more key words or phrases, some search engines prepare a list of sites based on matches with the metatags embedded in those sites. Some search engines also analyze the readable text of websites in their matching functions.

c. Here the problems have arisen where a website uses others' trademarks or trade names or a competitor's trademarks or trade names to draw traffic to its site. (This is not limited to officially registered trademarks: Even if a name isn't registered, the owner may have rights in the name simply from using it.)

d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plai

d. Having said this, there are some exceptions:

i. For example, comparative advertising which names a competitor in a non-confusing and truthful comparison does not constitute infringement.

ii. In addition, you can use another's trademark or trade name to identify the source of the goods or services of which you are complaining or discussing. In one famous case, a disgruntled former Bally Fitness customer was permitted to keep “www.ballysucks.com” because he was using it to criticize Bally.

iii. There is also an exception if the words used are truthfully descriptive. For example, there was no liability for a former Playboy "Playmate of the Year" who built a website that used the plaintiff's "Playmate of the Year", "Playmate of the Month" and "Playboy" trademarks, both on the site itself and as metatags. (Playboy Enterprises, Inc. v. Terri Welles.)

e. Recommended approach:

i. Even if you are going to use another's trademarks or trade names in a permitted way, to avoid trouble be sure to minimize their use, make it clear that those owners are not endorsing your site, and be sure to use disclaimers.

(1) (Disclaimer here means a statement along the following lines: "'Coca Cola' and the other trademarks and trade names mentioned in this site are the property of their respective owners. We have no affiliation with these companies and this website is not endorsed by them.")

ii. Also, if the owner of the trademark uses the "R" within a circle or the superscript "TM" symbols with the name, be sure to include that whenever you use the trademark.

4. COPYRIGHTS

a. Just because someone else's Web page does NOT contain a copyright notice does NOT mean that the material is in the public domain. The only way you can be certain you are safe is by either getting express permission from the owner to use the material or finding a statement on that site that allows you to use the material. (Many sites allow you to use their material for non-commercial purposes only.)

b. There is a “fair use” exception to the copyright law that allows you to use PART of another’s person’s work (not the entire work) without consent for purposes of review, comment, etc., particularly if the use is non-commercial. Basically, the more of the work that is taken and the more commercial the use to which it is put, the less likely that this exception applies. Because this can be complicated, talk to an attorney before trying to use the “fair use” exception.

5. DEFAMATION AND PRIVACY

a. Remember that just being on the Internet does not protect you against claims of libel. If you put something defamatory on your website or type it in a chat room or post it on a bulletin board you can be sued just the same as if you were handling out leaflets.

b. There are, of course, two classic defenses here: truth and opinion. If you state things that are clearly true or you clearly identify a statement as only your opinion or belief, generally you can speak freely.

c. However, even then, you may run into trouble if you disclose private facts about someone else or you cast them in a false light, even if not in a defamatory fashion (for example, deliberately stating that a life-long Democrat is a neo-conservative Republican).

d. Because the entire area relating to defamation is complex, it might be wise to run any statements you are unsure of past an attorney before posting them.

e. If you host a bulletin board or chat room on your website, you run the risk of potential liability if others post obscenity, libelous remarks, material taken without permission, links to sites that allow illegal free downloads of commercial software, etc.

i. You should make each user of a bulletin or chat room use a “click through” user agreement where they consent not to post pornographic, defamatory or infringing materials or links to sites conducting illegal activities. They should also consent to your company not being liable for other users taking such actions.

ii. If you are a service provider or are hosting a bulletin board or chat room, you can help protect yourself against liability for copyright violations by others using your site by registering under the Digital Millennium Copyright Act. (See http://www.copyright.gov/onlinesp/.)

6. OWNERSHIP

a. If your webmaster/mistress is your employee when your site is created or updated, you own the work. That is