The launch of any new product is a highly collaborative process, involving many business units including design and engineering, distribution, marketing and finance, and finally, the legal team who oversees compliance and ensures protection of the company’s interests. However, the type of product being offered can impact the process considerably. Unlike physical goods and services, online products carry a unique set of business and legal issues. Further, because an online launch tends move quickly and iterate on existing online experiences, it is critical for the business team to be aware of potential pitfalls in order to avoid delays.
For example, issues relating to intellectual property rights, distribution relationships and consumer protection are just a few of the areas that can cause a “red flag” if not properly addressed ahead of time. With guidance and support from the legal group, however, your client teams can get out in front of these issues. The below questions were designed with this goal in mind, to help teams identify potential areas of concern and encourage them to reach out for support from legal team well in advance of an online product launch.
Pre-launch Checklist for Online Products
- IP to Start
• Trademarks: What is the desired name of the product or key marketed features?
→ A trademark knock-out search can determine whether names are available for use. Further conversation with trademark counsel can help determine whether registration is appropriate or possible to protect others from using should the name prove popular.
• Patents: Does the product offer new or novel processes or methods?
→ A quick review for patentable elements can help get ahead of record keeping and other documentation that may be useful to protect valuable intellectual property.
- Product Use/Purpose
• How will the product be used by customers and end user?
→ A clear understanding of the product and its intended (or unintended but predictable uses) can help flag consumer protection or product liability concerns and the need for specialized subject matter expertise input.
- Launch schedule
• When is the Beta and GM launch? Who will be involved in Beta testing?
→ Clear communication on timing helps set priorities for reviews, and beta expectations may identify any confidentiality or other terms useful for beta testing audience.
- Third Party Elements
• Does the product access or require services from third-party vendors? Does the product include or access any third-party technology, trademarks/logos, or other content?
→ Locating and reviewing agreements and documentation will help determine if company has appropriate commitments to services, has the right to use third party elements as contemplated or whether further permissions should be documented.
- Reuse of Existing Property
• Does the product include or access any existing company-created technology or content?
→ Validation of prior vetting for existing elements helps ensure use remains appropriate for new product. In particular, consumer facing terms may require updating.
- Privacy and Data
• Will the product collect/store/use any user data? If yes, please describe what data will be collected, what it is used for and how long it will be stored.
→ Conversations about current uses as well as reasonably anticipated future uses help identify necessary privacy disclosures and consents that should be presented to end users and avoids unnecessary scrambles in future to amend terms to accommodate anticipated future uses. Advance notice for disclosures required in product or any tracking mechanisms to record consents helps plan directions of user interface and back end implementation designs. A thoughtful audit of storage and retention practices for any data is useful at the outset of product planning to ensure that management of data is trackable and secure.
• Where will the company distribute this product? A company owned and existing online property? Third party online properties? Offline distribution?
→ In addition to the all important privacy concerns above, Legal will help craft distribution terms appropriate for the new product. Online product launches may require amendments to existing terms of service or new terms. Distinctions between online and offline, or company controlled or third party distribution, are key considerations in the early product planning stages and help plan for these terms, third party restrictions, as well as any useful updating or recall mechanisms for the product. In addition, certain third party platforms have specific requirements to consider in product terms or features.
- Consumer support
• Has the company’s consumer support organization been briefed about the product and anticipated launch? Have FAQs or Consumer Support Solutions been created?
→ FAQs and other consumer support materials help reduce consumer support costs and are an easy consumer friendly tool for new products. Anticipating and collecting predictable consumer questions and solutions helps in training support organizations. Legal review can help head off unanticipated pitfalls with casual messaging that might inadvertently be inaccurate or misleading.
• Will the Product involve non-standard payments or tax implications?
→ For products launching to new markets, introducing new payment or rewards arrangements, checking in with tax and accounting teams helps ensure the record keeping and other administrative responsibilities are aligned before launch.
- Press and Marketing
• What press or marketing is anticipated for the product launch?
→ Legal eyes on press and marketing can help make sure claims or statements are aligned with business intentions and also identify needs for securing partner or other third party cooperation.
→ For more information on marketing collateral compliance, please click here.
Find a downloadable version of this checklist for online product launches here.
Cara Maggioni is a Partner with Outside GC LLC’s California-based team. She is an experience Internet, media and technology lawyer, specializing in online content, e-commerce, advertising and technology services. Cara's LinkedIn profile is available here. Cara can be reached at firstname.lastname@example.org.