Every single time I’m sitting at the comfort of my home, e-commerce window shopping and buying things at the click of a button, I feel so thankful. Though this is not how I ideally enjoy shopping, it definitely makes life easy on some days! The e-commerce business in India has picked up a great deal over the last few years and today there are dozens of e-commerce websites catering to consumers for their varied needs. The companies that started off earlier occupy a large market share (more because they’ve built a brand over the years), but there are newer e-commerce start-ups that have made it big in no time given their unique business models. From the intellectual property perspective, there are a few things that every person who is a part of an e-commerce website and is looking to have one should keep in mind.

Is your domain name someone else’s trademark?

Choosing a catchy and easy-to-remember domain name the first step for an e-commerce website but what is more important is to make sure you’re not infringing someone else’s trademark rights. Since the domain name and branding of the website are key to its success, there’s no going back on it once the website has been launched. So doing a preliminary check before the launch to ensure there’s no other website having similar domains (India or elsewhere) and also conducting a trademark search in India to make sure someone doesn’t have trademark rights to the domain name you’ve chosen.

My colleague in one of his articles has discussed common defences which we come across domain negotiations. This will definitely clear the misconceptions on the issue of domain names and trademarks.

Do you own the IP rights to the website?

The general practice seems to be that e-commerce website engage independent website developers to design and develop their website. At the outset, it may seem straightforward and you are inclined to believe that since you’re commissioning the work, all the Intellectual Property belongs to you. However, that may not always be the case. This is where it becomes important to have a web development agreement clearly stating the intellectual property that belongs to you and specific terms to ensure that your rights are protected in the long run.

Are you infringing third party trademarks or copyrights?

If you’re an e-commerce website that offers products, there is a high probability that the goods displayed on the website contain trademarks of third parties, however, if it is intended solely for the purpose of display and doesn’t create any association with the brand per se, such use may be permissible. However, making disclaimers regarding use of intellectual property on the website may help in the event that there is a dispute in this regard.

In connection with copyrights, there are a number of possibilities, however the two important ones are unauthorized use of images on the website and sale of products containing copyrighted material. In case of the latter, the liability is likely to be higher since there is direct monetary gain as a result of use of such copyrighted material. With specific reference to merchandising and use of copyrighted material, it’s best to reach out to the person who owns it and come up with a suitable arrangement rather than getting dragged into intellectual property infringement suits.

Is someone using your trademarks as a metatag? (Or are using someone’s trademark?!)

The evolution of e-commerce has definitely made easy for the people who use it but for the ones who run it, it’s anything but easy. The rising competition has given rise to many issues, some which still don’t have concrete answers. So is there a way to ensure that a competitor isn’t using your trademark as metatags to generate more traffic to their website? Going by the judicial precedents in India, this may amount to trademark infringement. You may have some respite if your competitors are using your trademark as metatags, so keeping an eye out definitely helps. Recently, Stayzilla and Oyorooms took to Twitter to sort out their issue on sue of Adwords. It’s very interesting to see IP disputes being sorted out this way but given the competition in the market, I doubt it will stop at just Twitter wars!

These are probably few of the many things that e-commerce websites need to think of at the time of launching the website and also in the course of their business. Since it’s an evolving business model, there are new issues that entrepreneurs will face with technological development and interpretation of existing laws. For now with specific reference to IP, there’s only a check list that e-commerce websites can make for themselves when they dive into the business.

This article has been authored by Nikita, an IP Law practitioner.