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Can Trade Dress Protect Your Website from Copycats?

November 8, 2013

Can Trade Dress Protect Your Website from Copycats?
Many organizations use free or relatively inexpensive templates to create their websites. However, template-based websites often incorporate high levels of customization and completely original designs are still developed from scratch to make websites stand out. While federal copyright law protects the content within a website, it doesn’t protect ideas or concepts. That makes copyright a poor solution for protecting the website itself from other organizations – and not just competitors – who attempt to copy the website’s appearance. The prevalence of templates exacerbates this problem. On the other hand, the concept of trade dress protects the “look and feel” of a product – for example, product packaging, a store or restaurant interior, or a magazine cover – and its recognition within the marketplace. It prevents others from copying a distinctive design that’s associated with a particular product or company. The U.S. Supreme Court ruled that a restaurant’s décor was inherently distinctive due to its unique murals, pottery and brightly colored wall designs. On the other hand, the Court determined that product designs such as the style of children’s clothing are not inherently distinctive and only qualify for trade dress protection if they become distinctive through secondary meaning. This occurs when a significant number of people associate a certain appearance with one brand or organization. In the case of a website, “look and feel” refers to the site’s overall style and design. This includes images, graphics, colors, frames and sounds, as well as the layout and arrangement of various visual elements and features. It can also apply to the general mood and impression created by the website. A company can use trade dress to protect its website from being copied when it is inherently distinctive. Trade dress has nothing to do with how a website works, or its functionality. It involves only the distinct style or appearance associated with an organization, much like trademark law protects a name, word, phrase, symbol or design that represents an organization and its reputation. Both are protected by the Lanham Act and can be registered with the U.S. Patent and Trademark Office. Not all attempts to protect websites via trademark/trade dress law have been successful, but there’s a growing body of case law in favor of applying these laws to websites as a way to prevent consumer confusion and unfair competition. In August of this year, a Louisiana district court allowed a trade dress infringement claim to proceed, ruling that the “look and feel” of a Maryland nonprofit corporation’s website was too similar to a lien management services company based in New Orleans to support a motion to dismiss. In this case, the plaintiff claimed to have made significant investments to develop a unique website, incorporating certain layout and design choices that made the site both recognizable and profitable. Because the defendant’s website was so similar, the plaintiff alleged damages to sales resulting from confusion among consumers. Even though the plaintiff had not trademarked its website, the court ruled that trade dress protection could still be applied. If you want to use trade dress law to prevent your website from being copied, make your website distinctive. The most logical way to accomplish this is by developing a completely custom site, but if you use a template, be sure to customize the appearance in a way that makes your brand unique while reinforcing public perception of your brand. More than a way to stop website copycats, developing a distinctive website is good business.
Daniel D. Whitehouse, Esq. -

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