Why Care About Contracts?
The rapid pace of e-commerce development has generally left the legal system struggling to keep up and gasping for breath. In much the same way as companies doing e-commerce must invent new business procedures and rules, the legal system is trying to adapt existing laws to fit new settings where it is simply unclear how these laws will apply.
The e-commerce legal tool of choice is the contract. If parties can agree how matters will be handled and capture that agreement in a written contract, they can, in a meaningful way, establish the rules that will govern their arrangements. In other words, these contracts can provide some degree of certainty even in the rapidly changing arena of e-commerce law. We can also expect that as legislatures and judges try to catch the law up to developments in e-commerce, they will look at successful methods and practices as models.
Today, there is a premium placed on negotiating contracts that adequately cover the likely scenarios that will arise out of an e-commerce relationship, to the extent that those scenarios can even be predicted. For example, "application service providers," were largely unknown even a year ago and novel e-commerce arrangements and relationships are announced on a regular basis.
Think of a "co-branding" venture where one party handles backend supply and fulfillment, the other party operates the front-end web site, and both parties outsource hosting and other services to third parties. Spice up that arrangement with corporate structures that include separate e-commerce entities, subsidiaries or joint venture relationships, and the notion of a "short," "simple," or even "standard" contract really does not make much sense. In fact, unlike traditional legal documents such as residential real estate contracts, it is difficult to point to a "standard" contract for e-commerce arrangements. You might even have several different types of contracts with different parties in any given e-commerce venture.
Given the importance of contracts in the e-commerce arena, you will want to know what to look for and what to think about when launching your e-commerce venture. While this article obviously will not discuss every issue, I have highlighted ten key legal concerns that you should consider in your e-commerce ventures and contracts.
Nail Down Your Domain Name
Do you have a "dot-com" name upon which you can build a brand presence? In e-commerce, brand often means everything. The domain name system was not designed to handle either today's volume of name requests or the issues raised by domain name selection. In simplest terms, domain names are registered on a first-come, first-serve basis. Problems are largely resolved through a dispute resolution system that lacks history and, at times, consistency.
You might find that your company's name, or something confusingly similar, has been registered by someone who now wants to sell the name back to you at a high price. This practice is now known as cybersquatting. There are now laws against this practice and actions that can be taken to get "your" domain name in that scenario. In another example, the domain name you want for your e-commerce business may be taken, leaving you with the choice of either changing the name you will use or purchasing the domain name you want from its owner at whatever price the market will bear.
There is a substantial interplay between trademark law and the use of domain names. You will want to obtain the domain names that you want and secure them through a combination of practical and legal methods, including the use of trademarks. Some of those methods of protection should be addressed by contractual provisions that govern the use of the name and any related trademarks. Something to watch out for: If your web host or developer registers your domain name for you, make sure that you, rather than the host or developer, is listed as the owner on the registration. Also, clarify who will have responsibility for renewing domain name registrations so you do not lose a domain name.
source
http://www.technologyevaluation.com/research/articles/ten-key-legal-concerns-in-e-commerce-ventures-and-contracts-16262/
The rapid pace of e-commerce development has generally left the legal system struggling to keep up and gasping for breath. In much the same way as companies doing e-commerce must invent new business procedures and rules, the legal system is trying to adapt existing laws to fit new settings where it is simply unclear how these laws will apply.
The e-commerce legal tool of choice is the contract. If parties can agree how matters will be handled and capture that agreement in a written contract, they can, in a meaningful way, establish the rules that will govern their arrangements. In other words, these contracts can provide some degree of certainty even in the rapidly changing arena of e-commerce law. We can also expect that as legislatures and judges try to catch the law up to developments in e-commerce, they will look at successful methods and practices as models.
Today, there is a premium placed on negotiating contracts that adequately cover the likely scenarios that will arise out of an e-commerce relationship, to the extent that those scenarios can even be predicted. For example, "application service providers," were largely unknown even a year ago and novel e-commerce arrangements and relationships are announced on a regular basis.
Think of a "co-branding" venture where one party handles backend supply and fulfillment, the other party operates the front-end web site, and both parties outsource hosting and other services to third parties. Spice up that arrangement with corporate structures that include separate e-commerce entities, subsidiaries or joint venture relationships, and the notion of a "short," "simple," or even "standard" contract really does not make much sense. In fact, unlike traditional legal documents such as residential real estate contracts, it is difficult to point to a "standard" contract for e-commerce arrangements. You might even have several different types of contracts with different parties in any given e-commerce venture.
Given the importance of contracts in the e-commerce arena, you will want to know what to look for and what to think about when launching your e-commerce venture. While this article obviously will not discuss every issue, I have highlighted ten key legal concerns that you should consider in your e-commerce ventures and contracts.
Nail Down Your Domain Name
Do you have a "dot-com" name upon which you can build a brand presence? In e-commerce, brand often means everything. The domain name system was not designed to handle either today's volume of name requests or the issues raised by domain name selection. In simplest terms, domain names are registered on a first-come, first-serve basis. Problems are largely resolved through a dispute resolution system that lacks history and, at times, consistency.
You might find that your company's name, or something confusingly similar, has been registered by someone who now wants to sell the name back to you at a high price. This practice is now known as cybersquatting. There are now laws against this practice and actions that can be taken to get "your" domain name in that scenario. In another example, the domain name you want for your e-commerce business may be taken, leaving you with the choice of either changing the name you will use or purchasing the domain name you want from its owner at whatever price the market will bear.
There is a substantial interplay between trademark law and the use of domain names. You will want to obtain the domain names that you want and secure them through a combination of practical and legal methods, including the use of trademarks. Some of those methods of protection should be addressed by contractual provisions that govern the use of the name and any related trademarks. Something to watch out for: If your web host or developer registers your domain name for you, make sure that you, rather than the host or developer, is listed as the owner on the registration. Also, clarify who will have responsibility for renewing domain name registrations so you do not lose a domain name.
source
http://www.technologyevaluation.com/research/articles/ten-key-legal-concerns-in-e-commerce-ventures-and-contracts-16262/
0 comments:
Post a Comment