E-Commerce Flashcards
What is a web-wrap agreement?
Requires a user to indicate agreement online with non-negotiable standard terms of sale
What is the difficulty about online contracts?
Hard to establish when the contract has actually been formed because we must determine what constitutes an offer and acceptance
What does provincial legislation say about online contracts?
Information in electronic form has legal effect or enforceability. The writing requirement is satisfied if the contract has permanent availability. Offer, acceptance, or any other part of contract formation can be done in an electronic document or by an electronic action
What impact does the online world have on the tort of defamation?
Posting of defamatory material online is libel. The size of damages is increased as the internet has the ability to reach many people instantly. Courts can order ISPs to release identifying information so anonymity is taken away
What is a trademark?
An identifiable feature used to distinguish one’s goods or services from another
What is trademark infringement?
The unauthorized use of trademarks
What is the impact of the internet on trademarks?
Increases probability of infringement, seriousness, and likelihood of detection
What counts as trademark infringement?
Any unauthorized use of the trademark. Any confusion must be related to the trademark and not just generic content.
Unauthorized linking of websites can amount to trademark infringement if it suggests affiliation, endorsement, or sponsorship
What is the implication of trademarks in domain names?
Business domain names often include existing trademarks. If it is obvious sites are not connected, the trademark could be used in a domain name if it doesn’t confuse people.
How are trademark infringement cases resolved?
Courts resolve them by granting damages and injunctions including transfer of a domain name
What is a copyright?
A form of intellectual property that allows the creator of a work exclusive right to copy, produce, or distribute the work for the length of their life and 50 years afterward
What does the copyright act exempt as offences?
Moving material from one device to another, recording material to be viewed later, backing up of computer programs, and private use reproduction of musical works, performances, and sound recording
How does legislation support copyright owners?
By using measures like the digital rights management system to block unauthorized copying of works
How do ISPs support copyright owners?
By policing the internet for infringers and notifying subscribers about infringements. However, they are not obligated to cut off the services of the infringers
What is patentable?
Any new and useful art, process, machine, manufacture, composition of matter, or any new and useful improvement of those things.
What is not patentable?
Scientific principles and abstract theorems. The use of a computer to solve a problem that could be done a different way. Databases
How does a court decide whether they will assume jurisdiction over a case?
Only where there is a real and substantial connection with the dispute or its parties. They still will not if there is a more appropriate foreign jurisdiction that should deal with it
What is forum non conveniens?
A court decides not to hear a case because there is a more appropriate foreign jurisdiction
What is the level of interactivity test?
Determines where an online business is being carried on
What are the steps of the level of interactivity test?
- If the out-of-state defendant is carrying on substantial business in the jurisdiction, there is jurisdiction where the business is carried on. Requires some kind of actual, not just digital, presence in Canada
- There is no jurisdiction if the defendant’s site provides purely passive advertising
- Jurisdiction must be figured out if the defendant maintains an interactive site
How is jurisdiction decided in cases of defamation?
By selecting the clearly most appropriate forum based on fairness and efficiency. Canada courts suggest that it is fair o pick the location where the most serious injury to reputation is suffered
When can you send an advertising email under CASL?
Cannot send without the permission of the recipient. Even if permission is granted, the message must identify the sender with contact info and set out a mechanism to unsubscribe
When is consent to spam email implied?
If the business transacted with the recipient was in the last two years.
If the business and recipient were party to a contract that expired within the last two years
If the business received an inquiry from the recipient in the last six months
If a person publishes their electronic address without stating they do not want to receive unsolicited commercial messages
