www.????.com – Protecting Your Digital Presence

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I wanted to take a break from my usual posts about more traditional construction issues and address a problem that contractors (and businesses in general) are increasingly facing: how to properly secure your long-term digital presence.

As a personal intro, my father, the owner of a mechanical construction company, recently discovered the wonders of the internet, including “the Google” and YouTube (solely for guitar videos).  Since pigs are officially flying, I figure it is only a matter of time before all contractors bring their presence online.  

As a professional intro, I was recently involved with a matter that addressed many of these issues.  Thus, hopefully this post will help organizations deal with these issues before they turn into litigation.

First Issue: Domain names

Securing the proper domain name (www.????.com) for your organization is often the first place to start when creating a website.  Getting a domain name involves registering the name you want with an organization called ICANN (Internet Corporation for Assigned Names and Numbers, a non-profit company that contracts with the government) through a domain name registrar (like GoDaddy.com).

For instance, if you choose a name like “example.com”, you will have to go to a registrar, pay a registration fee that costs between $10-$35.  That will then give you the right to the name for a year, and you will have to renew it annually for the same amount (generally).

If a domain name is available, it is yours.  Basically, think of it as a digital version of the Oklahoma land rush.  Domain names have been disappearing extremely fast.  Thus, if you want a domain name for your site (or future site), act now, or face the agony of having someone else scoop it up first.  After all, $10 for a year’s ownership of the domain name is minimal compared with losing the perfect name for your website.  And, if the domain is already taken, you can always try to buy it from the current owner (but this is often cost prohibitive).

Now what if a domain name that clearly represents the trademark of your company, such as , is already taken.  There are options to gain control if you think someone has registered your trademark with only the intent to profit by selling it to you (often referred to as “cybersquatting”).  Note: generally, a trademark is a distinctive sign or indicator used to identify a company’s products or services to consumers, and to distinguish its products or services from those of other entities.

First, all registrars must follow the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”). Under the policy, most types of trademark-based domain-name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name.  However, disputes alleged to arise from abusive registrations of domain names (i.e., cybersquatting) may be addressed by expedited administrative proceedings that the holder of trademark rights initiates by filing a complaint with an approved dispute-resolution service provider.    

Second, you can also file a lawsuit in federal court under the Anticybersquatting Consumer Protection Act (“ACPA”).  The purpose of the law is to thwart cybersquatters who register domain names containing trademarks with no intention of creating a legitimate web site, but instead plan to sell the domain name to the trademark owner or a third-party.

Generally, a UDRP proceeding can be faster and cheaper for trademark owners than an ACPA lawsuit 

Second Issue: Dealings with information technology (“IT”) vendors

In creating and maintaining a website, organizations often rely heavily on internet consultants or vendors, as this is specialized knowledge and is generally better in the hands of professionals.  However, there are risks to such relationships, which can be minimized.  For example, when registering a domain name with a registrar (see above), you have to provide the name of the “registrant.”  The registrant is generally presumed to be the owner, so if your vendor registers as the registrant, it may lead to issues later if you transfer vendors and want to take your domain name with you.

Also, vendors often contract with other third parties for hosting services or to acquire licenses and software on behalf of the client.  These contracts could provide that ownership of the licenses or software is with the vendor.

Overall, any organization that outsources its IT work should have a clear contract that lays out the rights and liabilities of the parties, which may include: specifying what is being purchased, identifying the owner of all relevant items, providing for a smooth unwinding of the relationship at the end of the term, and requiring the vendor to help in a transition.

The irony of a post on an internet blog about helping companies get an online presence is not lost on me.  However, my hope is that anyone with access to “the Google” can find this post and gain some helpful information.

Contactors and Green Building: I feel the need … the need for LEED!

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This , which discusses whether contractors and subs should get LEED accredited (or pursue a working knowledge), can be found on , Christopher Hill’s terrific construction law blog, where I have the honor of guest posting (click ).  So travel on over to Musings to read more, but don’t forget to write!  Seriously, your comments are appreciated, either there or below.

Caveat emptor . . . now just an old latin phrase.

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Having recently purchased a home built the same year the yo-yo was invented (1929), I was especially interested in a recent opinion of the Indiana Court of Appeals discussing the doctrine of caveat emptor.   In Kent and Elizabeth Hizer v. James and Rebecca Holt, No. 71D06-0907-PL-176 (Oct. 27, 2010), the Court addressed liability where a seller fails to disclose certain items AND a buyer fails to independently inspect those same items. 

In 2008, the plaintiffs entered into an agreement with the defendants to purchase a home and reserved the right to conduct an inspection.  As you may expect, they did not conduct an independent inspection of the home itself.  The sellers reported that a prior inspection by a prospective buyer had revealed virtually no problems.   The sellers completed the Sales Disclosure Form, as required by I.C. 32-21-5-7, at closing.  They disclosed only that the microwave oven and ice maker did not work.

Lo and behold, after the closing, the buyers discovered numerous problems, including faulty mechanical items, extensive mold, recalled pipe, and a leaking crack in the basement wall.  They contacted an inspector, who, coincidentally, was the same inspector that had inspected the house for the prior potential buyers.  He reported that he had previously discovered the mold, the recalled pipe,  and indications of water flow into the basement.   A lawsuit was born. 

Basically, the dispute concerned whether fraudulent statements made on the Sales Disclosure Form are negated when an inspection would have revealed the alleged defects.  The sellers cited a 2009 opinion, Dickerson v. Strand, wherein the court held that sellers could not be liable for fraud in misrepresenting the quality of the property when the buyers had the opportunity to inspect.  The Court rejected this earlier case, holding that it failed to account for the statutory disclosure requirements under Indiana law, and that there would be no purpose for such forms if sellers cannot be liable for fraud.  Thus, the Court rejected any interpretation of the common law that might allow sellers to make written misrepresentations with impunity regarding items that must be disclosed on the Sales Disclosure Form.

The Court did not address whether the microwave and ice maker were fixed in time for football season.

For the full text of the opinion, see .

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