WEB DESIGNERS, CLIENTS AND DOMAIN NAMES
Ivan Hoffman, B.A., J.D.
From the “It’ll never happen to me!” department, here is this scenario. For another very commonplace but significant error on the part of both designer and client, read “Web Design and Hosting Combinations: Cautionary Tales.”
Web designer reserves a domain name for the client but lists the “Registrant” as the designer. This may be intentional or just as a “convenience” (which, as you will see, it certainly is not). This should never be done in this manner. Thus: Mistake #1, from both the designer as well as the client standpoint.
Web designer starts working on a site for the client without a valid, thorough, written and signed agreement with the client. This may be intentional or because the designer has failed to insist on working only after such an agreement is entered into. Among the many, many provisions thus not covered include but are not limited to provisions dealing with the above situation and the issues related thereto. Thus: Mistake #2 from both the designer as well as the client standpoint.
A claim is made by a trademark owner that the domain name infringes upon or otherwise violates the rights of the trademark owner. This can lead to potential litigation under the Anticybersquatting Consumer Protection Act (“ACPA”) as well as the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and other possible claims including but not limited to trademark infringement and dilution. Designer, as the Registrant, is named as the defendant. Another claim may also involve site content for which the client and potentially the designer are liable. Read the above article again.
Designer claims the name was given to the designer by the client and thus the client should be liable. But without the above written agreement between client and designer, even if this could be proven to be correct, there are no provisions related to warranties and indemnities that the designer, or the client, can point to to straighten out the situation as between the 2 of them. Designer has to thus file a litigation against the client. Thus: Mistake #3 from both the designer as well as the client standpoint.
Client of course declines to pay designer, saying the designer is in “breach” of the agreement (though of what “agreement” is unclear), among other claims exchanged between the client and designer. Thus: Mistake #4 from both the designer as well as the client standpoint.
Result: The technical legal term for this situation is a “mess.” Irrespective of the outcome of the ACPA or UDRP claim or other claims and irrespective of the outcome of the client/designer lawsuit, both parties will likely end up spending tens of thousands of dollars (and probably more) in legal fees and possibly damages and with the further result that the designer loses the client, client’s site is tied up in litigation/arbitration, the domain is unusable etc..
Solution: all this could have been easily resolved in the form of a valid, thorough, written and signed agreement entered into before any work was done and before any money was exchanged. I have seen countless “designer-created” agreements and they are, from a legal standpoint, nearly totally unintelligible and rarely ever deal with the above (or any other real world situations). An agreement is supposed to solve more problems than it creates and poorly drafted agreements usually create more problems than they solve. An agreement is supposed to inhibit litigation and poorly drafted agreements generally promote litigation since no one knows what they mean. Read the numerous articles on my site under the general title: “Precise Contract Language.” Click on “Articles for Writers and Publishers,” (though they apply to designers, clients and all others.)
So if you think this will never happen to you, remember one of the many “Hoffman-isms:” it never matters, until it matters and then…it matters.TM This means that as long as everyone loves each other, as long as there are no claims and no disputes, maybe it doesn’t matter that the parties have not proceeded properly. But since no one knows when a situation is going to matter, when it does matter, when there are such claims and disputes (and given the litigious nature of our society, it seems inevitable), the failure to have documented their relationship in a legally sufficient way seems pretty short-sighted.
Copyright © 2012 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States law. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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