Are You Planning on Opening a New Website?
Below is a checklist for legal issues I use for new e-commerce clients.
1. Busines entity - Are you going to be a C corp, an LLC or a sole proprietorship?
2. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
4. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
5. Domain Name issues?
6. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
7. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
8. Do you need a DMCA policy?
9. Web Site security issues?
10. Do you need and have an EIN? You can get that for free.
11. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
12. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
Please feel free to contact me concerning your issues (No Charge.) I also offer a new client special to perform this work.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
The "company" needs formation expertise --will this be a corporation with shareholders? An LLC with members? A partnership? Getting this internal structure should be your 1st priority Does your city require a business license? Have you got a CPA to get a tax ID number?.
Definitely seek a professional's help to prevent any problems down the road.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
Nice checklist from Attorney Jaffe.
Here is the one I use, more elaborate and slanted somewhat toward Intellectual Property Issues. The choice of name is to me the most important single item, so it gets special attention.
Website Startup Checklist?
1 Intellectual Property Issues
1.1 Trademark – Have picked a great name for your website?
1.1.1 Will the site sell services or will it serve products, and will the name help such sales?
1.1.2 Do you have a brand name free from conflict?
18.104.22.168 If you are not certain, you need a trademark clearance search done ,
22.214.171.124 a domain name availability search done, and
126.96.36.199 a business entity name check done in the state where you will base your operation.
188.8.131.52 If not available, you must check with a trademark attorney about obtaining rights or pick another mark.
1.1.3 If available, should you register the mark, and when?
1.1.4 Alternatively, should you start with just common law rights? That is seldom smart.
1.2 Domain Name – Once you have trademark/service mark chosen, cleared and protected, you need to immediately register a domain of the same name, preferably as a dotcom as that is where people will first check and you do not want them diverted to another company. Longer reistration makes it less likely you will inadvertently let it lapse during startup.
1.3 Copyright –
1.3.1 Of Others - Images used? Stock? Original? Licensed? Registered? DMCA notice, procedure, software
1.3.2 Yours – Registered? Images? Content? Notices? Copy-Protect? Embeded tracking?
1.4.1 Of others – freedom to operate search? Licenses?
1.4.2 Yours – patentability search, costs, choice of attorney
2 Busines entity -
2.1 C corp, S Corp, Non-Profit, LLC or a sole proprietorship?
2.2 State of choice – costs, benefits, risks
3 Basic Agreements -
3.1 Terms of Service – Do it at the startA little work here brings big dividends in the future.
3.2 EULA - "browser wrap", "click wrap", “shrink wrap” - which do you need?
3.3 Vendor Agreements – web designer, host, credit, fulfillment, returns, royalties, etc.
3.5 DMCA policy - Do you need?
4 Accounting –
4.3 TurboTax? Or,
4.4 Do you have a good accountant's advice?
4.5 Taxes - Do you need and have an EIN? You can get that for free.
5 Insurance – Do you have any? General, specific, cost?
6 Backup – What sort do you have?
7 What Registrar & Host – GoDaddy? Bluehost?
8 Bandwidth – what do you need
9 Shopping Cart – which
10 Blog – Will you have one? Maintenance? Frequency?
11 Google Ranking/SEO – How & who?
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
E-commerce Sole proprietorship Incorporation LLC (limited liability company) C-corporation S-corporation Business partnerships Business contracts Business insurance Business privacy laws Small business license Intellectual property Copyrights Trademarks Commercial general liability insurance Credit Business Privacy law Starting a business S and C corporations Internet law Consumer protection Copyright infringement Tax return Startups Vendor agreement Starting an LLC