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1 Term Paper n Articles of Organization n Business Plan n Legal Analysis.

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Presentation on theme: "1 Term Paper n Articles of Organization n Business Plan n Legal Analysis."— Presentation transcript:

1 1 Term Paper n Articles of Organization n Business Plan n Legal Analysis

2 2 Articles of Organization n Corporate Name n Purpose Clause n Capitalization n Corporate Officers and Directors n Fiscal year n By-Laws

3 3 Business Plan n Title Page n Table of Contents n Executive Summary n Vision/Mission n Company Overview n Market Analysis n Financial Plan

4 4 Copyright Web Site n Statutory benefits n Limitations on statutory rights n Statutory Damages n Statutory Injunction n Appropriate Form n Filing Fees

5 5 Trademarks n Corporate Name n Domain Name n Logo n Advertising slogan

6 6 Jurisdiction n Where can the online business be sued? n Not related to liability n Can anything be done to avoid being sued in a foreign state or country? n What is required for a court to have jurisdiction?

7 7 Motion to dismiss n Non-resident defendant will bring the motion to dismiss n Plaintiff must then prove: –state long-arm statute applies –satisfaction of the US Constitution’s “due process” clause

8 8 Home Court Advantage n Local law will apply n Local law firm will defend the case n local jury will be selected

9 9 General Jurisdiction n Substantial n Continuous n Systematic - PRESENCE IN THE FOREIGN STATE

10 10 Specific Jurisdiction n Minimum contacts –litigation arises directly out of the defendant’s activities –defendant purposefully availed itself to conduct business in the foreign state –foreign jurisdiction was reasonable and foreseeable

11 11 Forum Selection Clause n must be reasonable n must be conspicuous n must not work a hardship on the defendant n courts generally will enforce them

12 12 Passive Web sites n Courts in a foreign state generally do not have jurisdiction n toll free number to order n no direct solicitation in the foreign state n merely transmits information n Blue note case

13 13 Traditional Notions of Fair Play and Substantial Justice n D purposefully availed himself of the privilege of causing a consequence in the forum state n the lawsuit arises from D’s activities in the forum state n jurisdiction over D is reasonable

14 14 Privacy in Cyberspace n Personal Information Stored in a Database –state statutes on privacy –common law privacy tort –Electronic Communication Privacy Act –FTC regulations (deceptive trade practice)

15 15 Privacy in Cyberspace n Employee use of Company e-mail –subject to pre-trial discovery and can be used by the government and plaintiff in a criminal case –employer’s monitoring of e-mail –company e-mail policy –Employer’s liability for employee’s improper use of e-mail

16 16 Privacy in Cyberspace n Employee use of WWW –non-business use –company policy –corporate culture –company liability for employee’s improper use of Web sites

17 17 Privacy in Cyberspace n Must have a Privacy Policy on every web site n Certification of Trust E and/or BBOnline is a good idea n Be aware of new national and international developments in privacy law

18 18 Privacy in Cyberspace n “You have zero privacy- get over it” n Scott McNaely - Sun Microsystem

19 19 Privacy in Cyberspace n EU Data Protection Directive –October 1998 –data protection within EU Member States –Member States should permit transfers to a third country only if “adequate level of protection” exists –EU may block transfer of data if inadequate

20 20 Privacy in Cybersapce n Massachusetts statutory privacy law –unreasonable interference with privacy –substantive interference with privacy –serous interference with privacy

21 21 Copyright n Federal registration in the USPO –copyrightable subject matter must be original works of authorship n literary works n musical works n dramatic works-motion pictures & sound recordings n choreographic works n architectural works

22 22 Copyright n Original works must be FIXED in any tangible medium of expression n it must be sufficiently permanent or stable to permit it to be perceived, reproduced … for a period of more than transitory duration n a Web site meet that criteria and may be copyrighted

23 23 Exclusive Statutory Rights under Copyright Law n To reproduce the copyright work in copies n to prepare derivative works n to distribute copies to the public n to perform the work publicly n to display the work publicly

24 24 Limitations on Exclusive Rights of the Copyright Owner n Fair Use n Express License to copy the work n Implied license to copy (limited?) n Public Domain - government documents and expired copyright works

25 25 Elements of Fair Use n Commercial or non-commercial use - profit or non-profit? n amount of the work copied in relationship to the whole (%) n nature of the work copied- creative or informational? n The impact of the copied work on the potential or actual value of the work

26 26 Theories of Copyright Infringement n Direct infringer - the acting party that copies the work (may be unintentional) n Contributory infringer- a person with knowledge of the direct infringement encourages it and provides facilities for that purpose n Vicarious infringer- a person who has control over the direct infringer and makes a profit from the work

27 27 Copyright Damages n actual damages- must prove actual loss and the return of any profit made by D. OR n statutory damages-(judge’s discretion) –if intentional infringement no more than $100,000 for each particular work infringed –if unintentional- a minimum of $200 per infringed work –generally-$500 to $20,000 per work copied

28 28 Trademark n Lanham Act - any –word –symbol –device –sound - used to IDENTIFY & DISTINGUISH good from those from others

29 29 Trademarks Classified n Generic marks - do not receive trademark protection n Descriptive marks - no protection unless either INHERENTLY DISTINCTIVE or have acquired a SECONDARY MEANING n Suggestive, arbitrary and fanciful marks are automatically inherently distinctive

30 30 Trademark Infringement n Generally an IMMEDIATE LIKELIHOOD OF CONFUSION with consumers n Generally between competing companies

31 31 Trademark Dilution Fed. Trademark Dilution Act n The trademark must be FAMOUS AND DISTINCTIVE n no need for likelihood of confusion n no need for competing parties n famous trademark has been either BLURRED OR TARNISHED

32 32 Famous Trademark n duration and extent of advertising n geographical extent of the trading area n degree of recognition of the mark n whether the mark was federally registered on the principal register n duration and extent of use of the mark

33 33 Dilution by Blurring n Blurring- –over an extended period of time –the value of the famous mark is diminished –on non-competing dissimilar products –even though no immediate likelihood of consumer confusion

34 34 Dilution by Tarnishment n The famous trademark has been associated with –an unwholesome –an unsavory –shoddy quality product (or Web site) –lack of prestige or quality of the product

35 35 Patents n Subject matter- BUSINESS METHODS –any new and useful process,.. or any new and useful improvement –an algorithm applied in a “useful” way, e.g. an accounting program that is useful –business methods- any new systematic way of organizing activities is potentially patentable (e.g. hotel reservations)

36 36 Online Obscenity n A category of unprotected speech n Miller case “definition” n state statutes may prohibit certain sexually explicit material n law applies where the transmission is receives not where sent

37 37 Online Obscenity n Miller case –community standard –work taken as a whole –average person –to be obscene has no literary, artistic or social redeeming value

38 38 Online Defamation n Defamation of character n person or a business n Published untrue statement n BBS and chat rooms n contributory liability of operator and Web site owner

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