Unit 9 The Internet and Contracts

Forum Selection Clauses What are they? Are they necessary in internet contracts? Are they enforceable? What do they look like?

18.Choice of Forum. It is understood and agreed by the parties hereto that the applicable laws of the Commonwealth of Massachusetts thereunder shall govern the validity of this Agreement and the parties’ performance or their respective obligations. Should it become necessary for the parties hereto to litigate their rights, obligations and duties thereunder, the parties agree to litigate in the state courts of Massachusetts.

Click-through Contracts UPS has a box to click before you send a package that says you read the agreement. The agreement includes a forum selection clause. User sues UPS and UPS says the case has to be brought somewhere else. User says FSC is not valid because UPS is a big company and he didn’t have time to read the whole agreement. What result?

Identity Theft Albert Gonzalez case State legislation How does this affect contracts?

Intellectual Property Protections Trade Secrets–commercially valuable, secret information (customer lists, secret formulas, production process) –Employee Duty of Non-Disclosure/Loyalty–not reveal secret information to employer’s competitors during time of employment –Misappropriation–wrongful acquisition, use of secret information Owner’s remedies–money damages, injunction Examples–employee breaches duty of loyalty; competitor’s industrial espionage (electronic surveillance) –Employee Rights to Compete With Former Employer Leave employment and work for competitor Use prior skills, knowledge unless valid contract restriction (reasonably limited) prevents working for competitor of former employer –Loss of Trade Secrets Protection Independent inspection of finished product Independent research Voluntary disclosure Negligence of owner–no reasonable protection precautions

Trade Symbols–Lanham Act’s protection against “palming off” (deception cashing in on competitor’s good name, good will or reputation) Federal Trademark Act Protection Registration–distinctive marks, labels, designators for goods/services; exclusive use Infringement protection–money damages, injunctive relief for violating exclusive use Types of Trade Symbols–identifiers, descriptors Trademarks–goods Service marks–distinctive identification of services Certification marks–distinctive features of goods/services Collective marks–membership in organization or goods/services produced by specific group Registration Requirements Distinctiveness–identifying origin of goods/services (fanciful, arbitrary, unique symbols not description of use, quality, ingredients, or function) Effect–national, constructive notice of ownership; federal court protection Loss of Protection–owner fails to use symbol in ordinary course of trade Infringement–intentional/accidental unauthorized use of protected mark; use of indistinguishable mark causing confusion Factors examined–intent, degree of similarity, strength of meaning, marketing/sales channels, relation between marks and goods/services Remedies–civil (damages/injunctions), criminal (fines/imprisonment) Damages–lost profits, attorney’s fees, court costs, etc. Seizure, destruction of “pirate” products

Copyrights–federal legislation exclusively protecting ownership of originally created, authored work in any tangible medium (original expression of an idea)–music, literature, drama, dance, pictures, art, recordings, computer programs, architecture Procedure–registration not required; protection when work becomes tangible Registration–required for infringement protection Scope of Protection–exclusive ownership for creator’s life plus 70 years Compulsory license–limited authorized use with royalty payments Fair Use Doctrine–limited free use (nature, type, purpose) for teaching, criticism, research, news reporting Ownership Transfer–sale/gift/inheritance Written, signed document required Infringement Remedies–civil damages, injunction (seizure and destruction), fines/imprisonment

Questions? Thank you for a great class. Good luck with your future courses!