Marketers must confront many legal issues in today’s society in order to create a successful business. Many marketing elements are within their control however they must also deal with the competitions marketing strategies or new technologies. Marketers are quickly leaving their television, print, and radio ads to the way of the future, the Internet. Businesses local, regional, and national have quickly embraced the Internet as an inexpensive means of advertising to reach a larger target audience. The Internet has become the one of the most effective ways advertise, and sell goods and services. The Internet can simply be defined as a network of networks which produces a “new medium of worldwide human communication” (The Cyberethics Reader p.ix). Although this opens up a world of possibilties for the Marketing profession, they must also be careful in following what has now become known as “Cyberlaw.”
“encompassing all the cases, statutes, and constitutional provisions that impact persons and institutions who control the entry to cyberspace, provide access to cyberspace, create the hardware and software which enable people to access cyberspace, or use their own computers to go “online” and enter cyberspace (UCLA Online Institute)”.
The difficulty with many in the Marketing professional is that a large amount are not trained in the law, or do not consider legal implications of their marketing actions. As Marketers enter the new frontier of Marketing on-line, there are many “Cyberlaws” that they must adhere to such as domain names, trademarks copyrights, jurisdiction, security, and ethics.
Every website that a marketer creates must use a domain name for access. This makes the search process for a site user-friendly while searching the World Wide Web. The Internet Assigned Numbers Authority (IANA) assigns each website a numeric Internet Protocol (IP) address. These numbers however are converted into plain English when viewed through a search engine such as excite or yahoo. For most companies their domain name is their company name such as www.mcdonalds.com or www.eddiebauer.com. For the company to be the most success it is important for the domain name to be as similar to the trade name as possible (University of NSW, Law Journal).
When marketing a company online there is a similarity between a trademark and a domain name. A trademark is known as “a word, name, or symbol used in commerce to distinguish one’s product and it’s source from other businesses and their products” (Alschuler, Grossman, Stein, and Kahan). A domain name acts as a company’s trademark on-line. The problem with domain names is that domain names are allocated on a first come-first served basis, and not according to whom holds the trademark. Therefore any individual could register the name www.mcdonalds.com before McDonald’s. In this case McDonald’s would have to purchase the domain name from the individual, usually for a hefty price if the individual is willing to sell it all. Competition between businesses has led to many marketers infringing on others trademarks and registered domain names. Domain name laws very slightly on the Internet. For example, two companies that provide different services can use the same trademark in the regular business world, but could not use the same domain name on the Internet.
The Federal Trademark Dilution Act of 1996 helped to clarify the line between trademarks and domain names (Alschuler, Grossman, Stein, and Kahan). The act states that it:
“protects ‘famous’ trademarks from uses by others that ‘cause dilution of the distinctive quality of the mark’ even when no consumer ‘confusion’—the touchstone of traditional trademark law—is likely because the marks are used for dissimilar products or services” (Alschuler, Grossman, Stein, and Kahan).
The act however only protects famous trademarks. Marketers must always research what is a protected domain name and/or trademark before beginning to market on-line. There are some simple marketing solutions however. The first is to register the domain name as a trademark. Since trademark disputes usually occur because someone wants to exploit the company, and since the trademark usually comes before the domain name, the company can register both at the same time (University of NSW, Law Journal).
Copyright laws are another factor that marketers need to keep in mind. A copyright is defined as “creations capable of being ‘fixed in a tangible medium” (Alschuler, Grossman, Stein, & Kahan). What is most focused on nowadays is copyright of computer software. Courts have been battling, Internet copyright laws and how to apply them to the ever-growing World Wide Web. An example of a new copyright law can be as simple as downloading a program onto a computer. This applies to marketers more closely when dealing with creating web pages. They must be very careful not to place any copyrighted text, graphics, audio, or images on their company’s website. It is extremely easy to download and use any file from the Internet, however even with the millions of websites out there it is still possible to be caught, thus resulting in criminal as well as civil liability. In order to avoid these difficulties do not use “multimedia” unless research has been done ensuring that the material is public domain. Another way to go about using copyrighted material is to ask the web master or company permission to use the “multimedia” material for commercial use.
With the increasing amount of e-commerce everyday online, consumers as more and more questions about the security of their information during their purchase
transaction. Most websites contain messages to consumers regarding the safety of their transaction online. Companies generally use what’s called a “firewall” between local area networks to provide security to their consumers (Alschuler, Grossman, Stein, & Kahan).
Another major issue that a marketer must focus on when dealing with the Internet is jurisdiction. A marketer must understand the international nature of the Internet, and know that its path may not only lie within the United States. Due to the fact that many laws over the Internet are not grounded or unresolved, it can leave the marketer in a very difficult and long law battle. There are seven main Cyberlaws to date that have been created: “jurisdiction and related issues; freedom of expression; intellectual property; privacy protection; safety concerns; equal access, and electronic commerce” (UCLA Online Institute). Marketers can first protect themselves by not committing a crime such as defamation, harassment, or use copyrighted material.
The issue still remains not so much in who committed the crime but in what jurisdiction is it considered a crime in. For example, pornography although not always greatly admired in the United States still falls under the freedom of speech amendment and is therefore legal. The same site however can be viewed in Pakistan, a strict muslim culture, where it is illegal. Does Pakistan have the right to sue the person responsible for the web site hosted in the United States? Even though cases of unlawful websites have occurred, and verdicts reached, courts are still battling out these issues. According to Internet Marketing:
“even in the face of world wide exposure, some U.S. advertisers and marketers choose simply to ignore foreign laws, and take the ill-advised position that if the advertising has been cleared in the U.S., then it will probably pass muster in other target countries…however it is the rare marketer who has the resources to conduct a comprehensive, international clearance program for it advertising or promotion.”
First the marketer must chose their target market to research. Make sure that all marketing and advertising materials comply with U.S. laws. Next fax foreign council instructions on the marketing campaign. The packet must consist of three main components: “your advertising paradigm, a cover letter discussing timing, fees, and correspondence in case of conflict or inability on the part of the foreign counsel to handle your particular matter; and a questionnaire” (Internet Marketing). The questionnaire is for the basic purpose of asking the council whether they can run the advertisement under the countries given laws. These simple steps must be followed to ensure not only eliminating legality, but ensuring the businesses success in the foreign country.
Just like accounting or law professions, marketing has a code of ethics to uphold. Marketers are personally responsible for each and every action and therefore it is up to them to make appropriate decisions regarding the marketing strategies. A Marketer’s professional conduct is guided by four simple rules (American Marketing Association):
1. The basic rule of professional ethics: not knowingly to do harm;
2. The adherence to all applicable laws and regulation;
3. The accurate representation of their education, training and experience; and
4. The active support, practice and promotion of this Code of Ethics
Along with these rules honesty and fairness towards clients, customers, and employees is important as well. They must uphold each of these rules through every part of the marketing process from promotions to pricing. Although marketing on the Internet is a fairly new concept, a Code of Ethics for Marketing on the Internet has been created to protect consumers online as well. One of the most important aspects of Internet marketing is privacy. It is the marketer’s job to ensure that collected consumer information is kept confidential and is safeguarded against unauthorized access (American Marketing Association).
Marketers must follow five general Internet guidelines or responsibilities when conducting business online. The first is to protect individuals privacy rights (American Marketing Association). The next is extremely important for anyone using the Internet. However marketers must keep within rapidly changing Internet regulations. The third responsibility is “effective communication to organizational members on risks and policies related to Internet marketing” (American Marketing Association). In other words the marketer is responsible for the actions of the employees working underneath them. Make sure they understand all regulations and policies. Lastly, all stakeholders must uphold ethical Internet policy to the highest regards. Any marketer who wants to create a successful business with follows these rules and regulations.
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