It is vital that you are aware of the key legal issues when developing your business in order to export online. With this in mind we have formulated a tool kit which will guide you through the essential areas and help you create a strong strategy. Our tips are aimed at steering you clear of the pitfalls that can arise. They are worth a careful read in all situations, e.g. whether you have a basic brochure website or are planning a sophisticated e-commerce type site.
1 – Website Planning
Your website will be your gateway to your e-exporting success. So, in line with other articles you may have already seen on this website about having an export plan, you also need a website plan!
Start to map out the basics to begin with, like:
- How will your website work?
- Who will create and provide the content and images? You will need to own these and so bear this in mind at all times (see also part 5 of this piece – ‘copyright considerations’).
- Will your site be translated into other languages and who will do this?
- How will any ordering process work?
- Will the site take payments? If so, there are various merchant services out there to start looking at.
Perhaps sketch a site map out so that you can discuss this further with any developer that you commission to undertake the build.
2 – Domain Names
Think about the domain name for your website carefully – it should tie in with your overall branding strategy. Your domain name can become a valuable intellectual property asset in its own right. Consider putting a budget aside early on to seek help from professionals to formulate a clear branding strategy.
Do be aware that if you make the wrong branding decisions at the beginning and omit to check the landscape including domains and trade marks already in use, you could open yourself up to having to undertake an expensive re-brand at a later stage.
As a starting point, some initial checks you should look at online are the domain name registers, trade mark registers and companies’ house registers. An effective e-commerce business will also have a strong social media presence so remember to diligently check these sites out. Your checks of these sites will help to flag up any major issues and help you to identify what is and isn’t available. Ensure to keep look out for any other businesses already using the same or similar marks to those you are hoping to use.
When thinking of trading internationally you need to be extending these searches to the relevant jurisdictions.
From a commercial point of view, you may be wise to register domain names now which you wish to use in the future for your online trading.
3 – Trade Marks
Your trade mark is a valuable piece of intellectual property that will add value to your business and can be added to your balance sheet. You will have far greater protection when trading and exporting online if you register your marks / logos as trade marks. A case of trade mark infringement is far easier to pursue where you have registered your mark.
There are a number of options here from UK to EU to International Trade Marks depending on where you are going to trade. Trade mark registrations are not as simple to do as they may appear and we urge you to stay clear of self filing and to invest the fees in professional registrations.
Once you have a registered trade mark, then you will be entitled to incorporate the ® wherever you use your mark. Once registered, also make sure you monitor what your competitors are doing online so that you can spot any infringements at the earliest opportunity.
We look further at Trade Mark protection at home and overseas in our other articles ‘Putting your intellectual property in order at home’ and ‘IP protection overseas’.
4 – Contract with Your Website Developer
We have worked with so many businesses that don’t have a written contract in place with their website developer. When glitches or issues appear with the functionality, ownership or timescales these become much harder to iron out and resolve.
Our fourth practical tip is therefore to ensure that before you commission any website development work you both agree and sign off on written terms covering the entire project.
A Website Development Agreement is a legal contract that we routinely draw up for clients. We start by providing you with a heads of terms type checklist to agree with your developer so that everything is covered from the outset. These are then drafted into a contract to govern the relationship.
5 – Copyright Considerations
Copyright is a type of intellectual property that doesn’t need to be registered. It automatically exists and will subsist in all the content that appears on any website – so for example the text itself, the images, any videos etc.
There are a few things to look at and keep in mind here –
- It is key that you don’t copy content from any other place online as you could open yourself up to a claim for copyright infringement.
- If you are commissioning third parties to produce content such as photographs or text for your website, you need to ensure that they will assign the copyright to you.
- Where you are purchasing images from stock libraries check the license terms carefully to ensure your use of them is permitted. Keep the requisite documentation.
- Always include a copyright notice on your website.
6 – Online Legal Policies
We have mentioned above that there are a multitude of websites in the digital world all operating in different ways. Clearly, a fairly simple brochure website may not require the same terms and conditions and policies as a more sophisticiated site.
However, whenever you are taking sales through an e-tail website, you will definitely need to comply with the various consumer and distance selling regulations in force. These grant consumers specific rights such as cooling off periods and the right to cancel the contract. Carefully drafted legal terms will grant you the maximum protection in this regard. Any terms and conditions for online sales should be covering points such as the ordering process, cancellation, returns, refunds, delivery etc. You should also research or take advice on the order and acceptance buttons that form part of the order process to ensure these are fully compliant.
We would also recommend in every situation that you check whether you require Terms and Conditions for Use of Your Website, Privacy and Cookies Policies and Data Protection Policies. These are often a necessity for even the most basic websites.
If you are taking and processing customer data you should consult the Information Commissioners website (www.ico.gov.uk) and become familiar with the rules on data protection. Where applicable, you will need to register with the organisation as a data controller and look to annually renew this.
7 – Foreign Law Considerations
When getting ready to sell overseas, consider whether your website and transactions through the website comply with similar regulations existing in foreign markets? We know for instance that there are issues surrounding VAT and how it effects e-exporting that need to be taken into account.
If you are unsure on the foreign regulations that are going to apply then don’t delay in taking expert advice from the right professional – whether this is a UK / foreign lawyer / accountant / tax specialist.
About Virtuoso Legal
Finally to conclude, we help businesses with the full spectrum of legal issues relating to websites, intellectual property and information technology. If you would like more help on any of the points mentioned here, do not hesitate to get in touch with us at Virtuoso Legal to speak to one of our experts.
You may also wish to visit our website www.virtuosolegal.com to read more about our services and our latest legal updates.