VirtuaClass

To date, there are 38 states which have laws regulating unsolicited commerceial email (”spam”). Although, each state’s law is ‘unique’ as there is no uniform state law, the majority of the anti-spam statutes prohibit false or deceiving information in the message subject line. Many of the states also proscribe the sale of software designed solely to misrepresent the point of origin or routing information of an email message. There are also “must do’s” such as labeling requirements for adult content.

Here is a succinct list of many email campaigning do’s and dont’s;

• Failing to provide an easy “opt-out” option
• Sending messages to those who have already opted out
• Including false or misleading content
• Including false information in the header (source, path, subject line)
• Failing to include :ADV as the first item in the header
• Use of another internet domain name without permission
• Violating e-mail service provider policies

To determine whether your state has an Anti-Spam statute visit the National Conference of State Legislatures website here: http://www.ncsl.org/programs/lis/legislation/spamlaws02.htm.
For more information related to Spam laws, including details on the national CAN-SPAM Act please attend our next VirtuaClass presentation of Internet Legal Compliance.

Often people believe that a contract must be in writing in order for it to exist or for it to be enforceable. Although, it is probably best practice to reduce your contractual agreement to a writing, this is not required in most instances. However, under the Statute of Frauds, six types of contracts must be written and signed. These contracts include:

1. Contracts in consideration or marriage
   1. This applies to your typical premarital contract
2. Contracts which cannot be performed within 1 year
   1. For example, some large construction projects can take up to 5 or 10 years in order for the structure to be complete and the contract to be fully performed.
3. Contracts for the transfer of an interest in land
   1. Real Estate contracts, purchase agreements, etc.
4. Contracts by the executor of a will to pay a debt of the estate with their own money.
5. Contracts for the sale of goods over $5,000.
   1. This applies to the entire contract. For example, if you are selling skateboards at $100 dollars each, then most of the time you won’t need a written contract for it to be enforceable. However, if a certain buyer wants to buy 51 skateboards (making the total purchase price $5,100), then the contract must be in writing for it to be enforceable.
6. Contracts in which one party becomes a surety (acts as guarantor) for another party’s debt or other obligation
   1. Co-signing on a car, loan, home, etc.

Although, by law these six contracts must be in writing to be enforceable, there are other good reasons to put your contract in writing. For example, if the contractual agreement is complex and detailed, then a writing will probably be more reliable than your memory. In addition, verbal communication can sometimes be misleading and difficult. Two parties could leave a contract negotiation with different perceptions about what was decided or have some confusion about minor details. However, with a well-written contract, it is difficult for the other party to claim that they had a different understanding or expectation.

Many Internet business owners are oblivious to their actual and potential intellectual properties. Ironically, for most Internet companies the value of the company is almost completely tied to intangibles/intellectual property. For example, the average start up ecommerce entrepreneur’s company assetts could probably be described something like this: home office, computer, cell phone, and a website.

The typical Internet start up company own very litte inventory, equipment, or real property. Therefore, if the company is worth anything, it is in the value of the company’s copyrights, trademarks, and overall goodwill.

For those internet companies who have not taken the proper steps to recognize, register, and understand their company intellectual properties here is a short FAQ you might find useful:

What is a copyright?

Copyright is the legal protection provided to the authors or owners of original works of authorship for work, including: literary, dramatic, musical, artistic, and other Intellectual Works. Copyright protection is provided to both; Published and Unpublished Works. The right is exclusive to the author and governed by The Copyright Act of 1976.

Why would I register a copyright?

While copyright registration is optional, copyright law provides several inducements or advantages to encourage copyright owners to make registration. First, registration establishes a public record of the copyright claim. This is important because before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

Further, if made before or within 5 years of publication, registration will establish prima facie evidence that your have a valid copyright in whatever work has been registered.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. (Registration may be made at any time within the life of the copyright).

What is a trademark?

A trademark is a word, phrase, symbol or design (like a logo), or a combination of words, phrases, symbols or designs, that is used to identify and distinguish the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

Why protect a trademark?

Trademarks make it easy for consumers to find your product in the marketplace, i.e. Trademarks help prevent marketplace confusion. Trademarks are among the most economically efficient communication tools and are typically considered your most enduring company assets.

For a much more in-depth study of copyright and trademarks please attend the next scheduled Intellectual Property VirtuaClass.