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Do You Need A Web-Site Disclaimer?

Whether they do business locally or globally, many business owners believe an Internet presence is essential in today's economy. So they register a domain name. But what they may not realize is that putting their business on the Internet constitutes advertising in every country in the world. You can't prevent someone in Kansas or Katmandu from visiting your nonpassword-protected Web site, seeing your logo and reading your text.

This raises the possibility that you are unwittingly infringing on a trademark or copyright held in some foreign country. It also raises the possibility of someone suing you for infringement just about anywhere -- including some places where you'd rather not drink the water, much less get in trouble with the law. Let's look at how using a disclaimer can protect your Web site -- and your business.

The Trouble With Web Sites

In some ways, a Web site resembles a direct-mail brochure or catalog. But in one important respect they're different. You can distribute brochures and catalogs to a restricted geographic area, thereby limiting the places in which you advertise and to which you ship products. Suppose a stray catalog happens to wind up in Baghdad, and an Iraqi company sues you for trademark infringement. You can avoid having to show up in an Iraqi court by proving that you didn't intend to advertise or do business in -- and you have never shipped products to -- that country.

On the other hand, a Web site is everywhere at all times. You can't restrict its distribution. And you can't defend yourself by claiming that you didn't intend for people in Baghdad to visit the site.

Post a Disclaimer

Posting a disclaimer may help you defend against a foreign company that sues you for infringement in a foreign court. Your defense would be that a foreign court lacks jurisdiction over you. The jurisprudence concerning what court has proper jurisdiction to hear a case is complex. But under basic U.S. law, courts can exert their jurisdiction only over defendants that have established "minimum contacts" with the state in which the court sits.

Suppose your company is a truly local company that does business in only limited areas. Placing a disclaimer on your home page may help you later prove that your company lacks minimum contacts in other areas. Your disclaimer could state "We do business only from our store located in Kennebunkport." Or "We have locations in Kentucky and Tennessee only and do not intend to enter into contracts outside these states."

Your disclaimer's wording will vary depending on your company's nature and geographic scope. Ask your attorney to help you compose the notice for maximum protection.

Links to Copyrighted Material

Many Web sites provide links to other sites that customers might find useful or interesting. You could be sued for infringement if your site provides links to other Web sites that feature copyrighted material and your framing implies that it is your own content. So make sure the material doesn't appear to be part of your site.

One way to do that is to avoid framing other people's Web pages within your site. If that isn't possible, post a disclaimer on your "links" page. Explain that the linked sites are not part of your company's site. State that those site owners -- not you -- own the intellectual property rights to the material on the linked sites.

Low-cost Protection

Posting a simple disclaimer on your Web site costs you hardly anything and affords you priceless protection -- unless you like the idea of traveling the world defending your company against infringement suits. Please contact us if you have questions about the best way to write and display your disclaimer.