Articles & News About ISP's And The Internet

Online Business And Domain Name Disputes

Disputes over domain names can be a part of online business. When a dispute over a domain name occurs you can always turn to the courts. Although courts have the authority to award control over domain names, don?t expect a quick resolution. As usually, courts act slowly. Therefore, many businesses avoid the courts and turned to the name registrars for help.

Companies that do bring a court action must be prepared to spend a significant amount of money on legal fees. Your company is going to have to prove in court why a domain name needs to be transferred to another business.

In reaction to strong lobbying from trademark owners and famous individuals, Congress passed the Anticybersquatting Consumer Protection Act in November of 1999. This act made it easier for individuals and companies to take over domain names that are confusingly similar to their names or valid trademarks. To do so, however, they must establish that the domain name holder acted in bad faith.

Web Site Terms of Use

From a legal standpoint, it is important to have a ?Terms of Use? page on every business web site that describes the terms and conditions that govern the relationship between the visitor of the website and its publisher. Properly written ?Terms of Use? can be an invaluable tool in protecting your businesses from misunderstanding, frivolous lawsuits, and crippling legal exposure.

Terms of Use pages contain similar content, but there is no one size fits all solution. Each online business has a unique relationship with its customers that must be considered in its ?Terms of Use?.

Common Elements Of Terms Of Use

Choice of Forum - Choice of Forum provisions permit the parties to a contract to choose, with some limitations, the jurisdiction in which any disputes pertaining to their relationship are resolved. In many cases, a web site?s Terms of Use purports to require any legal action pertaining to the web site to be brought in the jurisdiction in which the online business is located that may be very inconvenient for a distant customer.

Choice of Law - Choice of Law provisions permit the parties to a contract to select, with some limitations, which particular jurisdiction?s laws will be applicable to their relationship. Usually, a web site?s Terms of Use will apply the law of: (1) the jurisdiction whose laws are most favorable to the publisher; (2) the jurisdiction in which the publisher is physically located; or (3) the jurisdiction whose laws are most familiar to the attorney who drafted the contract.

Limitation of Liability - These provisions allow one or both parties to place certain limitations on their liability for breaching the agreement of the parties. Properly drafted, Limitation of Liability provisions can cap a party?s legal liability for certain conduct.

Indemnification - Indemnification provisions permit a party to shift the burden associated with an projected loss to the other party. In many cases, a web site?s Terms of Use require the visitor of a web site to indemnify the web site?s publisher toward any losses associated with the use of the web site?s content.

Attorneys? Fees and Costs - In general, a party is required to pay his own legal fees and expenses, win or lose. Nevertheless, parties to a contract may, with some limitations, require that a party who loses in a legal action brought pursuant to the agreement pay the attorneys? fees and costs sustained by the prevailing party.

Your Terms of Use is one of the most important content created for your Web site; therefore, it is advisable to have an attorney look it over prior to posting. A well drafted Terms of Use contract can reduce your legal exposure while a poorly written one can increase your liability.

George Meszaros with Webene http://www.webene.com

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