Making It Legal:

Last month, the Federal District Court in Brooklyn, N.Y., decided a case involving a dispute between a purchaser and a company providing information reports online.  As reported by Eric Goldman in his Technology & Marketing Law Blog, the case of Scherillo v. Dun & Bradstreet confirmed that “acknowledgment check boxes” can provide a powerful defense against the claim by an online purchaser that “I didn’t mean it/I didn’t know what I was buying/I didn’t agree to these terms” (choose the lame excuse of your choice).

Here’s why that’s so important for online businesses [With apologies to History of the World Part 1]:

In the beginning, there was the handshake. That’s what sealed a deal.

Then, you had stone carvings. Sealed wax on parchment. As literacy became more prevalent, people signed written agreements.

With fax machines, acceptance of fax signatures (that is, not requiring original ink on the document) grew.

So in this brave new Internet Age, how can you make sure that both sides truly agree to the terms when there isn’t actually a document to sign?

That’s where having mandatory click-through agreements on your website is so vital to staving off contract disputes. Ading “agree” checkboxes can help close the possible loopholes. They provide an important advantage over an e-mail exchange: The terms you set are yours. It’s a take-it-or-leave-it proposition, which streamlines your customer intake process. Also, the steps that a customer needs to go through in order to make a purchase confirm their consent to your terms. Again, it’s a strong defense to an “I didn’t know I was getting into this” attempt to weasel out of the transaction. Without some form of confirmation that your customer has agreed to your terms, you risk having to fight off contract disputes in any place your customer has come from (which, given the reach of the internet, could be the entire world).

Here’s an encouraging story about how someone fought back against a Twitter-jacker–and won!  StartUp Nation founder Rich Sloan outlines how he found out that someone had co-opted StartUp Nation’s identity on Twitter and the steps he took to resolve the situation . . . and without incurring huge legal fees.  Read through the comments, too, as they provide sound advice about the need to monitor your company name and trademarks on a regular basis.

“Faster than a rolling O.  Stronger than silent E“—that’s the pace at which information (and misinformation) flies around in cyberspace.

Even worse is when something written about you/your company comes back to slap you in the face like a coconut cream pie.

In his post, “Should Personal Blogs Be Allowed and Permitted by Employers,” Kirk Noel Narrows outlines the essential conundrum in letting employees blog:  You don’t want to be known as the self-preservationist ogre who stifled self-expression, but you must protect your company from damaging employee blogs.

He goes on to say:
Would it not be smarter from the very start to have clear policy procedures in place , including a signed non-disclosure document, clearly listing rules, proceedings and a time line after leaving the employer? Large corporations do this as a simple matter of routine. Should not this be your established pattern as well ?

I couldn’t agree more.  Far easier to set the boundaries at the beginning with a new hire than try to change horses midstream.

Not strictly information concerning legal issues . . . but if you don’t properly manage your company’s online reputation, you could find all sorts of trouble a-brewing for your business.  Check out the article written by my colleague, Jennifer Schiff, in SmallBusinessComputing.com

Yippy kai yay–we’ve made another list!  Check out 100 Best Blogs to Hone Your Entrepreneurial Instinct.  We’re  No. 2 in the “Starting Up” category (which places us, conveniently, at No. 2 on the list overall).  OK, so the title isn’t e-x-a-c-t-l-y right (”Make” It Legal?), but it links back to us and we’re proud.  Also pleased to see some of our WomenEntrepreneur.com colleagues mentioned (check out the section on “Women Entrepreneurs”):

• Bonnie Price
• Joanna Alberti
• Aliza Sherman
• Vanessa Summers (check out the “Money” section)

Congratulations to you!  Off to do another happy dance. 

OK, I confess.  I may have conquered the art of posting regularly to Making it Legal, but I still feel overwhelmed at times about moving through the world of social media.  Like I don’t have enough on my plate already?  It reminds me of my sister-in-law’s recent birthday party.

The whole clan (there were nearly 20 of us!) got together at Carmine’s Restaurant and sat around a huge table.  First came the garlic bread.  Then the antipasto.  Then the Caesar salad.  Then the fried zucchini strings.  Then the penne with tomato sauce and pesto tortellini.  Then the chicken with mozzarella cheese.  The broccoli rabe with garlic.  Then dessert:  biscotti and chocolate mousse cake.  Frankly, by the time the pasta came around, I was done.  But I kept eating.  It was so scrumptious.  I was so full I could barely breathe . . . and felt just this side of sick!  I walked out of the restaurant v-e-r-r-y slowly.  I just couldn’t digest it all.

When dealing with social media, there’s so much to digest and understand–especially to use it effectively.  That’s where I’m thrilled to have my own social media Sherpa, Lena West.  She has a helpful post (yeah, OK, it’s from last year, but the advice is solid) on social media time management that bears reading.

Gotta toot my horn on this one:  Making It Legal made SheTakesOnTheWorld’s list of the Top 30 Business and Entrepreneurship Blogs by Women!  I’m joining illustrious company such as Escape from Cubicle Nation, Sparkplugging, Ali Brown’s Blog and Diva Marketing.

Now you’ll excuse me while I go do my “happy dance” in the living room. 

Oh, it should be so easy.  Let’s face it, if securing and protecting trademarks were simple, any fifth-grader would be able to do it.

You’ve had sleepless nights coming up with that oh-so-fabulous brand that will rock the world (or at least your market niche). You sweated out the search process, making sure that no one else is using the same or similar mark in the same (or a similar) way. You drummed your fingers incessantly, waiting months for the Trademark Office to respond to your application. You tore your hair (or bit your fingernails) over the seemingly picayune alterations they wanted you to make to the application in order to get it through (not to mention the possibility of paying more in filing fees). You held your breath during the publication phase of the process, closing your eyes and praying to any deity that would listen that no one would object to your application. Finally, you got what you thought was the Holy Grail of trademark protection: the “R-circle” (®).

Can you breathe now? 

Yes and no.

In her post, “My Trademark Was Granted–I’m Done . . . Right?” my colleague, e-business lawyer Deena Burgess, Esq., tells you what’s up ahead, and what you need to anticipate.

I spoke at the Brooklyn Creative League earlier today, and the question, “Isn’t it true that there’s no regulation of the internet?” came up.  So once again, I had to debunk that myth.

In addition to the Communications Decency Act and the Digital Millenium Copyright Act, there are a host of federal and state laws concerning false advertising, trade, trademarks, copyrights and contract terms that DO apply to your online business activities.

So how can you create an e-commerce website that doesn’t become a breeding ground for lawsuits? For starters, have a look at “Careless With Your Business Website?  Don’t Get Sued.” written by my colleague, technology lawyer Mark Grossman, Esq.  Also check out my article on Website Terms and Conditions at GreatBusinessLawTips.com.

With the ease of internet communication comes the ease of creating a mountain of problems. Identity theft, data hacking and misuse, and lack of security top the list. If your company holds onto any personally identifiable information, you should consider developing policies for dealing with it.

They don’t have to be complicated. This about the data that businesses collect about you, and how you would want them to handle it. Monte Enbyskhas developed a short list to help you be smart and responsible when it comes to privacy:

1. Take inventory of the personal information you collect and store.
2. Analyze how safely you use and store this data.
3. Make sure you’re complying with industry regulations or federal laws.
4. Post a privacy policy that is clear and comprehensive.
5. Have your policy reviewed by an attorney or by a privacy seal program (Need I say more?)
6. If you have employees, protect their personal information and carefully screen and restrict those with access to personal data.

As if there weren’t enough issues to put into our employee manuals, the internet and Web 2.0 have made them proliferate.Each time there’s a new technology, lawyers have to evaluate: “Is it covered under our current policies?” And, not being the one to say “sure!”–and be wrong –voila! A new policy is born.

The latest addition that I’ve just come across is the employee WiFi use policy. As noted in Matthew Hegarty’s article in the October 2008 New York Enterprise Report, employers need to be on the lookout for unauthorized access to their networks. Given that so many more employees are working remotely (from a home office or just on the road, on the train while commuting, etc.), there are more places and opportunities for hackers to breach your system.

Here are a couple of items that Hegarty suggested:

• Use complex passwords. These are passwords that have a mix of letters, numbers and cases (UPPER and lower)
• Change passwords every 60-90 days.
• Use a Virtual Private Network. This is a private network that can be accessed online but requires a login sequence to access.
• Ensure encryption of wireless traffic (see Wi-Fi.org)

Speak to your IT professional about your options for wireless network security.

From my dear colleague, Jennifer Schiff, comes this intriguing article on “Why now is the time to optimize and freshen up your website.”

It’s tempting to want to throw money at SEO specialists.  While I “get” the optimization thing, I have my niggling doubts as to whether the hordes who say they know the secrets really do.  Is SEO a magic bullet or snake oil?

That’s where small businesses need to be very careful in their agreements with these companies.  Ask for references (and check them!).  See what kinds of guarantees (or disclaimers) they put in their contract with you.  Make it very clear what they will be doing for the fee you’re paying them and whether this is on a project basis or will be an ongoing expense for as long as you have your website.