Did you know that you might be infringing on other people’s copyrights and trademarks on your website? Did you know those infringements could end up costing you a lot of time, stress, and money?
It’s true, and if you don’t fix your mistakes, you could be in a lot of legal trouble. Below are steps you should take immediately to clean up your website so that you’re not breaking copyright and trademark laws.
Copyrights: Ensure you have the legal right to use an image, design, video, audio, or text on your website.
If you don’t have the legal right to use an image, design, video, audio, or text on your website, but you publish the content anyway, you could be infringing on someone else’s copyright.
Here are four ways to determine if you can publish an image, design, video, audio, or text on your website:
1. You created it.
If you created the image, design, video, audio, or text, it’s your original work, and you own it, then you can publish it on your website without violating any copyright laws.
2. You licensed it.
If you got permission from the owner to use the image, design, video, audio, or text on your website, then you’ve licensed it and can publish it without infringing on the owner’s copyright.
3. You know it’s fair use.
Tread cautiously when it comes to fair use, which was created so that people could use copyrighted works in limited manners and for reasonable purposes without first getting the owner’s permission to do so. However, fair use isn’t free use. The safest course of action is to assume your use is never fair use.
4. You know it’s in the public domain.
When the copyright on an original, creative work expires, the work enters the public domain, which means anyone can use it without providing attribution to the owner. Images created by some government entities are also available in the public domain as are creative works that owners intentionally put in the public domain. You can use any creative work that is in the public domain on your website, just make sure that the work truly is in the public domain and not misidentified.
Trademarks: Ensure you have the legal right to use the trademarks you put in your domain names, website, and metadata.
If you use a trademark that you don’t own on your website, in your domain names, in your social media profile names or URLs, or in your website’s metadata, you could be breaking trademark laws. Here are three ways to confirm you can use a trademark in your domain names, website, and metadata without getting into costly trouble.
1. You have a federal trademark registration.
If you registered the mark that you want to use in your domain name, website, or website metadata with the U.S. Patent and Trademark Office, then you can use it without worrying that you’ll infringe on someone else’s mark.
2. You cleared the trademark and are sure no one else has rights in the mark you’re using or intend to use.
If you haven’t yet filed a trademark registration for the mark you want to use in your domain name, website, and website metadata, you might still be able to use it without breaking trademark laws. If you’ve conducted a comprehensive trademark search that found no other confusingly similar marks, then you know no one else has rights to it.
However, you must conduct a comprehensive trademark search, not just a preliminary, “knock-out” search. There is a big difference in the results these two searches provide as well as the costs. If a preliminary search finds no matches for the mark, that doesn’t mean it’s clear for you to use.
3. You’ve complied with trademark fair use rules for third-party trademarks.
Trademark fair use is unrelated to copyright fair use, so don’t get them confused. Third-party trademarks can be used without getting into trouble under two circumstances, which are referred to as Classic Fair Use and Nominative Fair Use. Classic Fair Use is where the junior user uses another’s trademark when that mark contains one or more descriptive words, provided that use is in the literal sense of the word. What does that mean? Here’s an example. “Come to our store today for the best buy on the market.” The use of “best buy” in this copy doesn’t refer to the BEST BUY store.
Nominative Fair Use occurs when one party uses another’s trademark to refer specifically to the trademarked product or the source of the product when there is no other reasonable way to refer to the branded product. This is common in product reviews, promoting an affiliation with a particular brand, and comparative advertising, provided it’s a true comparison. An example would be an ad that says, “Our brand is better than CLOROX.”
Innocent infringement is still infringement when it comes to copyright and trademark laws. That means you can’t say, “I didn’t know,” and expect to get out of trouble. Defending yourself in a trademark or copyright infringement is far more expensive than following the tips above and making sure you’re not breaking the law in the first place.
Kelley Keller CEO of Kelley Keller Law and a 20-year veteran of the intellectual property law field with experience helping businesses of all sizes (including many household brands) identify, manage, and protect their trademarks, copyrights, patents, and trade secrets. She also counsels clients on general business matters such as contracts and business formation and on family matters such as wills, trusts, and more.