Intellectual Property in your Terms & Conditions

Intellectual Property in your Terms & Conditions

There are legal methods for registering your intellectual property so you can enforce your rights in court, but you also need a way to enforce your interests in a less formal and more immediate manner.

You can do that with intellectual property protection provisions in your Terms & Conditions (T&C) agreement.

What is intellectual property

"Intellectual property" is a general term that includes creative creations of the mind. Designs, symbols, literary and artistic works, and images used in commerce all fall under intellectual property.

Trade secrets, such as how a company finishes a task, are also protected as intellectual property as is proprietary data, like customer lists. These are basically the non-tangible assets that support the success of your efforts.

Your website or app contains many intellectual property elements:

  • You likely have a company logo which would be protected under trademark laws.
  • The same is true for any logos unique to a mobile game you might develop.
  • If you're distributing a mobile game, the game contains music, characters, stories, and voices that are subject to copyright protection.For unique designs for new technology, devices, appliances or processes, you can pursue patents as well as copyright registration.

Registering your intellectual property allows you to pursue remedies should another party copy or infringe upon it.

You can register music, visual arts, literary works, movies, photographs, and digital content at the U.S. Copyright Office or if you require international protection, you can consult the World Intellectual Property Organization to find similar offices in other countries.

There is no such thing as a worldwide protection for intellectual property, so seek protection where you are most likely to attract the largest number of users.

Terms & Conditions for intellectual property protection

You can use your Terms & Conditions to protect intellectual property too. Provisions regarding intellectual property can address your ownership interests, exclusive use, and enforcement measures.

This is appropriate content for your Terms & Conditions agreement because the agreement is the contract that contains the rules and guidelines for using your app.

Conduct, payment terms, and allowed uses are all issues you would address in this agreement.

If you create apps or run a website that provides any kind of service to customers, a Terms & Conditions agreement is crucial. Without this agreement, you lack authority to terminate abusive accounts or take other action to prevent abuse:

  • If a user consistently disobeys your conduct rules, removing that user preserves the quality of your online community.
  • Failure to provide payment on time or attempts to reverse-engineer your product can also threaten your business and these can be grounds for user account deactivation if you draft your rules correctly.

The same can be true for intellectual property violations, too. Including "Intellectual Property" clauses in your Terms & Conditions allows you to deactivate accounts or collect damages in the event that your intellectual property rights are infringed or violated.

Clauses

To secure enforcement against intellectual property violations, you need to:

  • Include the correct terms in your Terms & Conditions, and
  • Make sure users accept your Terms & Conditions

Business owner often believe that registering their intellectual property with the right offices is enough. In many cases, this is true - if you intend to go after every infringer with a lawsuit and a request for damages.

However, that does not always solve the problem. A proper Terms & Conditions agreement will help in a number of ways.

First, it places users on notice that the intellectual property belongs to you.

When they accept the Terms & Conditions, they also acknowledge that you have proprietary interests where they cannot interfere. That notice in your agreement is the grounds for all enforcement and protection measures.

Notice is also important because it's unlikely you can register for copyright protection in every country where you have users.

Second, you need practical solutions.

The Terms & Conditions agreement can give you the authority to terminate or deactivate user accounts when inappropriate use of your intellectual property is detected.

Finally, your intellectual property is important.

Trademarks represent your brand and help your products stand out in the market. They are like a hailing beacon to your users. If people start copying and distributing them, it makes it difficult to distinguish your authentic brand from the copy.

Besides trademarks and brand, the operation of your website or app depends on your intellectual property. If there is a unique brand associated with your website or app, that offers you an edge that could disappear if someone makes an unauthorized copy of your website or app.

Enforcement

To enjoy the "enforcement power" in the intellectual property provisions, you need users to accept the terms. The best way to accomplish this is through the clickwrap method, often used at sign-up forms.

Clickwrap forces users to accept your Terms & Conditions and Privacy Policy agreement when signing up. It often refers to pressing a "submit", "register" or "sign up" button to make it effective. If users don't agree to your Terms, they cannot complete sign-up.

Meetup takes this approach:

Meetup Sign-up clickwrap: By clicking sign-up, you confirm

BBC asks several questions at sign-up to confirm user preferences. It also makes it clear that users who create an account are bound to BBC's Terms of Use, Cookie Policy and Privacy Policy agreements:

BBC Sign-up clickwrap: By clicking register, you accept

Other companies prefer the additional "I agree" checkbox to assure acceptance of the terms.

BambooHR not only has a sign-up process for users to access its online software, but it requires them to check a box indicating agreement with the Terms of Service and Privacy Policy:

BambooHR Sign Up Clickwrap Checkbox: Agree to Terms of Service and Privacy Policy

Examples

Meetup is a well-known online social service which encourages mainly user-generated content. It provides a platform but wishes to preserve its trademarks.

In its Terms & Conditions it emphasizes the protection of these trade and service marks but also its product - the platform where people schedule meetings and events:

Meetup Terms & Conditions: Trademarks as intellectual property

Valve is the creator of Steam. Steam is a subscription service so it offers a Subscriber Agreement, which is similar to a Terms & Conditions. Even as it handles the intellectual property of other developers, Valve enforces an interest in its own:

Valve Subscriber Agreement: Intellectual Property

RescueTime is a productivity tool that discourages distraction on the Internet. Its Terms of Service agreement also emphasize trademarks since it has distinguishable user icons:

RescueTime Terms of Service: Trademark information

RescueTime also follows up on its trademark information by stating a rule against use of its intellectual property:

RescueTime Terms of Service: Ownership and Intellectual Property

Amazon groups its interests by category and contains links to lists of intellectual property it owns. Its intellectual property protection provisions are among the most extensive of these examples:

Amazon Terms and Intellectual Property: Copyright, trademarks and patents

FIFA mentions its own trademarks and copyrights as well as those owned by third party designers that it is licensed to use:

FIFA Terms of Service: Intellectual Property as Trademarks and Copyrights

Like FIFA, the Terms & Conditions of BBC addresses the copyrights and trademarks that belong to others. Also, in typical BBC fashion, it presents this material in a unique presentation. Notice that it is extremely specific on the types of content that require permission to use and distribute and also lists the exceptions:

BBC Terms & Conditions: Intellectual Property

Apple is another large well-known company that is protective with its intellectual property. It uses plain language to make it clear that users are not to use these elements and yet provides a very detailed and extensive list:

Apple Terms & Conditions: Intellectual Property

All of these statements indicate that using protected intellectual property without permission is prohibited.

Many Terms & Conditions agreements also include provisions that state a violation of the agreement leads to account suspension or deactivation. This may be listed under prohibited conduct or under a section regarding termination of accounts.

Apple explains that a violation of any provisions, presumably the intellectual property provision too, is grounds for termination:

Apple Terms & Conditions: Termination if intellectual property is violated

Meetup also places enforcement measures under its prohibited conduct section. It explains that any intellectual property infringement is grounds for removal from the service:

Meetup Terms & Conditions: Termination if intellectual property is infringed

Your trademarks, copyrighted material, programs, and processes are all vulnerable. Take the needed steps to register them with the relevant offices, if you can afford to do so, but never forget to include them in your Terms & Conditions agreement.

Jocelyn M.

Jocelyn M.

Former civil litigation attorney. Content legal strategist.

This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.