My company has hired a web design firm, as well as another firm for logo and graphic design work. Here is my concern. What happens if the web designer or graphic designer has copied work from another site? The company that provided these services is outside of the US. Is there any insurance I can purchase to protect myself against this? Can I trademark the web design? I am planning on have many duplicates of these sites that are local to a given area. For example a site of los angeles, a site of orange county etc.. Which is why if the design is copied I can be in serious trouble beacuse it would be against multple sites +50? What can I do?
Your biggest problem is copyright infringement. First you should have a contract drafted where it is specified who owns the design (work for hire, designer, etc) and logos. Second the contract must have specific indemnification language to protect you from deliberate or inadvertent copyright infringement.
Talk to any of the fine attorneys that contribute in avvo to draft such contract.
You cannot trademark a website, because you are not selling websites, you can copyright a website design, but it will have to be something very special to be worth the effort.
You could obtain a design patent and conceivably a utility patent but it must fulfill all the requirements to obtain such a prized property, and honestly I do not know of many who qualify.
You need proper services agreements with the web design firm and the logo/graphic design firm, that includes a warranty that their work is original and [you did not mention this] it is work for hire and all copyrights are assigned to you [they may very well not agree]. That warranty is no better than the firm that gives it, as copyright damages can be many thousands of dollars. A small graphics house warranty is likely worth little as the graphics house can just go bankrupt or go foreign and avoid the liability. That is why major domestic businesses go to major domestic graphics firms. They want ones that can stand behind the warranties. So if you hired a cost cutter foreign firm (say you outsourced to India for pennies on the dollar priced work) that was too cheap to be for real, you may well have gotten what you paid for, and your worries may be for real. What to do if you did that? Hire a reputable firm and replace the questionable stuff is one solution. Business insurance that has an Intellectual Property liability coverage for this is another, if you can find it. You might be able to register the logo and graphics as trademarks, even if they are copied, but trademark registration is not a defense to copyright infringement. What you really need to do is get to an IP attorney versed in copyright law and Internet law so you can address both sides of this issue properly. You should do that before you launch those graphics, or if you have already launched then right away, like tomorrow! I sense there is more to your concern than you are telling us. Like perhaps a Getty Images letter or a cease and desist letter, or discovery of identical images on other sites or on proprietary image seller sites. You are wise to not reveal too much here on this public site, but you need to see that attorney and fess up to all you know in the confidential attorney-client relationship you should create to get the specific advice you need.
When you say that your company has "hired" a web design firm and a graphic design firm, does that mean that it's entered into contracts that define the work and specify how any intellectual property arising from the work would be owned? And do those contracts require the firms to warrant that their work is original? Since the companies are outside the U.S. do the contracts provide that the companies consent to resolution of disputes in a U.S. jurisdiction or by arbitration in the U.S? If so, then you've got most of these issues handled.
Yes, there are forms of business insurance available to deal with possible liability for trademark or copyright infringement.
The design of a website may give rise to certain trademark rights, but is more likely to be protectable by copyright. It would be important for your company to have an agreement with all suppliers of such services that provides that your company owns the copyright in any deliverable.
Good news. You're asking generally many of the right questions, and, yes, a lawyer adept at the tools of intellectual property as applied to websites should be able to advise on appropriate strategies to minimize your company's risk. One way to deal with this generically would be to seek a legal audit of the website.
I know of no insurance you can buy to cover this risk, but you should check with several brokers. If you need help with the agreements, including work made for hire, we are in West Los Angeles.
Mr. Burdick lays it out nicely in terms of proper service agreements with warranties, and coming from a reputable firm. Based on your comment to his answer, this is an example of legal strategy that may benefit your company at this stage:
- Proper agreements with all graphic designers / programmers / developers / even the SEO company
- Trademark protection of word mark and design mark (logo)
- Review of business and marketing plan of company, conduct intellectual property audit and consult on other aspects of company intellectual property, monetization strategy, licensing and promotion. Advise on legal issues as appropriate.
Do you plan to launch sites for clients, or 50 different websites of your business, but each localized to a regional target demographic?
