A checklist for setting up and running an online business or marketplace

By Ashfords

Our checklist below guides you through the key components of creating a successful website for your business.

Key componentPre-requisites and functionsLegal implications
Brand nameBusiness nameA brand may be protected by several intellectual property rights, primarily trade marks and the tort of passing off, but also copyright and design rights.When choosing a business name, you must ensure that you carry out the necessary searches to ensure that you have the freedom to use that name.Carrying out the necessary searches will avoid the possibility of an action against you for the tort of passing off or for any trade mark infringement.We will also be able to assist you with the registration of your trade mark which will make enforcement easier.
Domain nameBusiness domain nameDomain name protection is an important aspect of brand protection for any business with a website presence.As mentioned above, you will need to carry out the necessary searches to avoid the tort of passing off or any trade mark infringement.We will be able to assist you with the registration of your domain name.
WebsiteDeveloping the websiteHosting the siteSEO servicesPayment servicesThe development and supply of a website will require a website development agreement to identify any assignment of the intellectual property rights in the website and bespoke software.A website hosting agreement with a third party to host the website will require technical specifications and service levels. From a commercial perspective, this agreement should address website functionality, availability and payment processing (unless provided by third parties such as Stripe), which must be continually monitored to ensure availability and consistency throughout busy periods.You, as the website owner will be legally required to impose specific restrictions on the host as to the processing of personal data (such as names, addresses and e-mail addresses) concerning visitors to the site. This can be achieved with specific Data Protection data processor clauses.As a website owner, search engine optimisation services and techniques may be required and these may be formulated into a search engine optimisation services agreement.
MobileMobile applicationThe development and supply of a mobile application will require a mobile application development agreement to identify any assignment of the intellectual property rights in the software.Additionally, a mobile application that is downloaded or streamed to users’ devices may require a mobile application end-user licence agreement.You may also require a mobile application privacy policy that sets out the basis on which any personal data you collect, or that is provided to you, will be processed by you (we also refer you to the section below regarding personal data).
MetatagsMetatags: i.e. using competitors’ product names as metatags to attract users who are searching for those productsMetatags that are used to be embedded into the site’s HTML code need to be selected carefully. You may be guilty of trade mark infringement if you use a competitor’s product name to attract their searchers.
Mandatory information to be displayed Website content‘About us’ pageCompliance with the applicable Law:For example, including a note of the company name, where the company is registered (England & Wales) and its registered number on websites.If you use cookies, depending on the use of the cookies, you may be required to obtain the user’s explicit consent and we can assist with drafting cookie short form notices or a cookie policy.
Terms and policiesi.e. Preventing unauthorised access to or use of the websiteYou may require some terms and conditions of use to be drafted to control the access to, and the use of your website.Additionally, a website acceptable use policy could include rules in preventing the unauthorised reproduction of material and undesirable user behaviour (for example, hacking, introducing viruses and uploading illegal or defamatory content.)
Personal dataCollecting any personal data from usersUser-generated contentIf the site is going to be collecting any personal data from users, it will need to comply with GDPR and Data Protection rules.Policies and clauses – notify users (data subjects) and obtain consent to processing which may be obtained through a registration form/data capture.You may require a privacy policy to be drafted for example, to notify users of their rights under the Data Protection rules.A privacy policy may also include security procedure clauses in order to comply with the Data Protection rules.We may provide advice relating to your liability under the Data Protection rules and guidance relating to user-generated content, for example, defamatory content posted on your site.
Protecting intellectual property rightsRights in the content displayed on the siteIntellectual property rights, such as copyright, trade marks and database rights are found in the content displayed on your site. Accordingly, you may want to notify users of the owner of these rights and this may be done by way of notices.In relation to user-generated content, you may require terms of use of the user-owned content to be drafted. In some cases, these terms could include a licence of all intellectual property rights in content displayed on your site.
Linking and framing Other websites linking to your site or linking to other sitesFraming third party content on your siteIt may be that other websites would like to add a link to your site on their page. You may give your consent for them to do this by way of a linking permission clause in your terms and conditions or by way of a more specific linking licence.Additionally, displaying content from third-party sites on your site may give rise to copyright issues.
Content produced by employees of the businessCommissioning or licensing contentAcquiring contentIf an employee creates intellectual property rights these will usually be owned by their employer however, issues of ownership may arise if the employee is acting outside his role.Agreements should be entered into when you are not producing content yourself by means of copyright assignment clauses or a licence of digital content (see also website development agreement).
e-commerceSelling goods or servicesSelling goods or servicesConsumer contract rules that all businesses selling online must comply with. Consumers have a right to cancel, and businesses will need to obtain the consumer’s express acknowledgement of the obligation to pay before they can be bound by the contract. The new rules, such as rules on cancellation, returns of goods and information to be provided to consumers at the point of sale may also be drafted into your terms and conditions for the sale of goods/supply of services.Your terms and conditions cannot override pre-existing statutory consumer rights which should also be present, including whether they would be regarded as ‘unfair’ for consumers, and the requirement for goods to be provided in conformity with your terms.
Advertising and marketingMarketing of your businessYou may like to use the data collected (registration form/data capture) for marketing purposes which will require express consents to be obtained (for example by way of an “opt in” option) from the users to receive unsolicited direct marketing material emails (communication with prospects not customers).You may wish to work with partner websites that will refer users to your site and we can assist you by drafting an affiliate website marketing agreement.
Advertising keywordsi.e. Using Google AdWordsPurchasing certain advertising keywords may give rise to claims for trade mark infringement or the tort of passing off.
Age specific productsNo contracts with minorsIf your site is selling age specific products such as alcohol, you will need to include steps to verify a customer’s age is over 18.
Comparison sitesComparison site that uses spiders, bots or crawlersWhere you use these methods to obtain and collect information from other sites, you may be taking legal risks in relation to copyright, database right and other intellectual property rights.
PlatformAuction site or marketplace or other platformYou may require advice in relation to your liability in the event that your site carries goods that infringe intellectual property rights or are counterfeit. 
Platform for BusinessesOnline intermediation services provided by site to an EU business to offer goods or services to EU consumersThe Platform to Business Regulations regulate the ability of platforms to abuse their position as an intermediary to impose unfair conditions on their business customers. If you use such platform or provide one, you would need to ensure that its terms and conditions comply with the rules, including setting out required information and processes such as variation and termination terms, IP/customer data, complaint/ dispute resolution process etc.


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