Things to Watch Out For in An Amazon FBA Letter of Intent

Things to Watch Out For in An Amazon FBA Letter of Intent

Business Sale, E-Commerce
You’ve worked hard to build your Amazon FBA business but have decided it’s time to ride off into the sunset, or at least move on to your next venture. You’ve identified a suitor and, after some initial meetings, say they'll be sending you their “LOI”. You're not sure what an LOI even is, what is normally in there, or what you as a seller r should be on the lookout for. In this post, we cover what an Letter of Intent is, why it's so important, key things to watch out for, and why understanding what should (and should not) be in it is critical to your chances of a successful sale of your Amazon FBA business. Ben’s Note: Although I will refer to Amazon FBA throughout this article, the…
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Can I Really Be Forced to Sell My Domain Name?

Can I Really Be Forced to Sell My Domain Name?

Domain Names, E-Commerce, Trademark, Trademark Infringement
Is it possible for the owner of a domain name used for a business to be forced to sell their domain name? Earlier this month, I received a frantic e-mail from a business owner (to protect the innocent, let’s call her "Debbie"), who had received a threatening e-mail from another business owner (whom we’ll call "Penny"). Debbie’s e-mail went something like this (edited by me for brevity and client confidentiality reasons): I just learned another party has filed to trademark the name of a website I have owned now for several years. She says I have to sell her the domain name. What are my rights? Since this question (in some form or another) is often posed to me, I figured it might be the perfect time to relate some…
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Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Contracts, E-Commerce, Terms of Service
Remember these...? Last month, Southwest Airlines Co. (“Southwest”) filed a complaint in a Federal court in Texas (where the discount fare airline is based) against Kiwi.com, an online travel site. While the lawsuit revolves around Kiwi’s scraping of airfare data from Southwest’s website, as well as violation of the Computer Fraud and Abuse Act (CFAA), it offers some valuable lessons to e-commerce and online businesses relying on “browsewrap” terms for their website. Case Background In the Complaint filed in Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021), Southwest accuses Kiwi of scraping of the airline’s flight and pricing data off of its website and selling Southwest tickets through its own platform (apparently charging service fees on top). Southwest, in its breach of contract count,…
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Repeat After Me—Domains are NOT Trademarks (but Trademarks Can Be Domains)

Repeat After Me—Domains are NOT Trademarks (but Trademarks Can Be Domains)

E-Commerce, Entity Formation, Lanham Act, Trademark, Trademark Infringement
Lately, I've had more than one new business owner client tell me they registered a website domain with their company name and, because they were able to do this, then it must not be a registered trademark and available, right? [I direct your attention to the title of this blog post] No, you cannot just add a word onto someone else's trademark and register that domain A recent situation with a new startup client ran something like this: the founder had selected their company name but had not ever bothered to perform an actual trademark search or "clear" the usage of the name. She subsequently hired my firm to assist with getting their startup formally set up and basic initial documentation and disclosures prepared. At one point, the founder requested…
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‘Red’ Alert: After Redbox, Is It Time to Revisit Your Online Terms of Service?

Contracts, E-Commerce, Technology, Terms of Service
In this article, we discuss one of the more recent and interesting (or, depending on your perspective, exasperating) Federal trial court decisions looking at the enforceability of online terms of service, Wilson v. Redbox, why the case matters, key takeaways for your online business, and what it should be doing in response. A brief re-cap, Wilson, a Redbox user (amazing to think it was not that long ago that we actually went to kiosks for our movies--what a hassle!) sued the popular DVD movie rental company under the Telephone Consumer Protection Act (47 U.S.C. § 227) for continuing to send automatic text messages to her phone despite her having opted out. Redbox’s "Terms of Use" (represented by hyperlinks in both its kiosk and website checkout screens require mandatory arbitration of…
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