Last updated: August, 13, 2020

The following is a brief summary of the online marketing laws in Oregon, as of August, 2020.

Sale Of Goods

Under Oregon law, ‘sale’ refers to ‘a contract between two or more parties whereby one party acquires property or service in exchange for payment or consideration’

In the case of digital goods or services, such as websites, e-books, and apps, there is no ‘sale’, as such, under Oregon law. However, ‘sale’ may be a relevant consideration under a contract between two parties, if, for example, one party builds the other party a new brand or improves their existing brand’s online presence in exchange for payment.

Non-Resident Sales (NRS)

NRS refers to ‘the offering for sale or lease of any goods or services in this state [Oregon]’, where the offeror is not a resident of Oregon. Any contract for the sale of goods or services that are performed in whole or in part in Oregon by a person or company that is not a resident of Oregon is subject to the sales tax in Oregon. While this tax is not applicable to online or catalog sales, which is why it is generally not collected by vendors from out-of-state customers, it is still relevant when determining whether an out-of-state contractor is subject to taxation in Oregon or not.

Use Of Trademark

A trademark is ‘a distinctive mark, design, or symbol [used] in order to identify and distinguish the goods or services of one person or company from those of others’

Trademarks may be registered with the US Patent and Trademark Office or may be unregistered (commonly referred to as ‘dormant’ or ‘registration-expired’) Trademarks may be protected by the Lanham Act or state common law.

The use of a trademark in commerce must comply with the Lanham Act and may also be subject to the registration requirements of the Lanham Act. (If you are using a trademark in a way that is inconsistent with its registration, you may be subject to legal ramifications.)

Business & Commercial Professions Code

The Business & Commercial Professions Code (B&CCPC) sets the parameters for what constitutes a ‘business’ and ‘commercial’ activity for the purposes of Oregon law. A ‘business’ is defined as ‘an activity conducted, continued, or caused to be conducted or continued, for profit or gain.’

An ‘enterprise’ is defined as a ‘business’ or ‘commercial’ activity conducted by two or more individuals. An ‘enterprise’ cannot discriminate against any individual or entity on the basis of race, creed, color, national origin, gender, sexual orientation, or disability.

‘Business’ and ‘commercial’ activities include, but are not limited to:

• Operating a business or selling goods or services for profit or gain,
• Transacting any business for purposes of trade or commerce,
• Participating in the management of a business,
• Maintaining an office for the conduct of business, and
• Engaging in a regular course of business activity.

Uniform Trade Secrets Act (UTSA)

The Uniform Trade Secrets Act (UTSA) establishes the basic framework under which misappropriation of trade secrets claims may be brought. (Oregon is one of three states that have adopted the Uniform Trade Secrets Act.)

A ‘trade secret’ is defined as:

• Any formula, pattern, device or compilation of information which is used in one’s business and which gives him an opportunity to derive economic profit or benefit,
• Any intellectual property, including but not limited to inventions, designs, slogans, logos, trademarks, service marks, slogans, and know-how,
• Any special computer software or program that is used in one’s business,
• A trade secret may remain a secret for a variety of reasons, including but not limited to:
• To prevent disclosure of the information,
• To prevent the product from being duplicated,
• To prevent the product from being reverse engineered,
• To protect the business’ competitive intelligence,
• To protect the business’ research and development, and
• To protect the business’ confidential information.

• The above definition of a ‘trade secret’ is similar to that of the US Patent and Trademark Office (PTO) under 37 C.F.R. §202.1(a)(4).
• The PTO takes a broad and flexible view of what constitutes a trade secret. (This is similar to the above definition of a ‘trade secret’ under UTSA.)
• For example, a customer relationship management (CRM) tool that is used by a corporation to maintain a database of customers is a ‘trade secret’ even if the tool is not patentable and even if parts of it are available for free on the internet. The fact that information derived from the tool is protected as a trade secret applies even if the tool is only partially functional or used for demonstration purposes.

Computer Fraud And Abuse Act (CFAA)

The CFAA is America’s first anti-hacking law, passed in 1986.

The CFAA makes it unlawful to ‘intentionally access a computer without authorization, or exceed authorized access, and thereby obtain information from any protected computer’

The CFAA defines ‘protected computer’ as:

• Any computer,
• Which is used in or affecting interstate or foreign commerce, or
• Which is owned by, or is under the control of, a federal, state or local government agency,
• Which is intended for use by, or for the benefit of, the public, and
• Which is used in any way by one or more individuals, organizations, or governments,

• To access, alter, or destroy information, or,
• To obtain information from, or monitor transmissions to or from, another computer,
• To transmit, or cause to be transmitted, a computer virus to a computer, or,
• To use the computer to send or receive facsimiles (‘faxes’) or electronic mail (email).

The Single Sales Rule (SSR)

The Single Sales Rule (SSR) requires individuals and businesses that are registered with the Oregon Secretary of State to report all of their sales of tangible goods and services (except for resellers) to the State of Oregon.

The rule was put in place to ‘level the playing field’ for businesses that are operating online, by forcing out-of-state sellers to collect and pay sales tax in the same way in-state sellers are required to collect and pay sales tax. In practice, the rule tends to favor in-state sellers, because it is often difficult to determine whether or not a part-time online business operates out of state, and the reporting requirements can be burdensome.

Registration Of Businesses

Registration of a business with the state requires the business to appoint an agent for legal process; the agent must be a resident of the state of Oregon and must agree to accept service of legal process in his or her behalf. (This is similar to registering an out-of-state business with the California Secretary of State.)

Once the business has been registered with the state, it becomes subject to the jurisdiction of the state’s courts and the state’s revenue authorities, (such as the Oregon Department of Revenue).

Payroll Tax

All regular employees of a business are required to register for income tax purposes with the Oregon Department of Revenue (Director of the Department of Revenue).

There is a payroll tax of.077% imposed on the gross income of every regular employee. (The payroll tax in Oregon is different from the social security tax in that it is not calculated on an employee’s income, but is a separate tax; however, the two taxes are included in the employee’s total taxes.)