When businesses seek methods of protecting their websites, the usual thought is to register the copyright for the written content and images, and register any logos that might be trademarks. This can be done with the United States Copyright Office and United States Patent and Trademark Office (“USPTO”) respectively.

A copyright protects the artwork and original writing involved in the website, and a trademark protects the marks that you apply to your goods or services. But, what if some unsavory character avoids using your logos, and avoids stealing your content, but copies your layout and your color schemes? In other words, having protected your copyrights and trademarks, how do you also defend the “look and feel” of your website from being stolen by competitors?

The answer is that a business owner can protect their “trade dress.” Trade dress infringement in the United States can be combated with litigation when two elements are met.

The first element is that a person, “on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact.”

The second element is that the action in the first element is “likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.”

So when does trade dress infringement apply? The cases are varied, but one could generally come to the conclusion that where the manner of visually presenting is so unique to a business that it would be likely to cause confusion if someone else used that same manner of presentation, trade dress infringement comes into play.

For example, imagine that a fast food burger chain started up, using a golden “n” arch on its restaurants, and copying the architecture of McDonald’s restaurants. That chain might very well be committing a trade dress infringement, even though McDonald’s has not trademarked a golden “n,” and its architecture is not trademarked or copyrighted.

To constitute trade dress infringement, the device in question cannot be “functional.” In other words, it cannot have a purpose beyond associating the good or service with its owner. For example, a plaintiff could not claim trade dress infringement simply because someone else happened to use the same tires on their company vehicles as the plaintiff.

So how does this apply to websites?

When the “look and feel” of a website is copied by a competitor, and that look and feel results from something other than purely functional attributes of the website, the courts have permitted trade dress infringement cases to move forward. For example, in the ruling in Blue Nile Inc. v. Ice.com and Odimo, Inc., 478 F. Supp. 2d 1240 (W.D. Wash. 2007), the plaintiff brought an action for trade dress infringement, accusing the defendant of copying their website’s “look and feel.” The defendant sought to have the claim thrown out, but failed.

A number of factors will determine whether a trade dress is inherently distinctive, permitting it to be protected by trademark law. The USPTO’s website advises its attorneys to consider whether the trade dress is:

1) A “common” basic shape or design;

2) Unique or unusual in the field in which it is used;

3) A mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods;

4) Capable of creating a commercial impression distinct from the accompanying words.

Trade dress infringement, particularly as it relates to websites, is a complicated issue. Special measures should be taken when initially designing the presentation of a product or service to avoid infringing on another person’s trade dress, and to ensure that it is unique enough to become your own, protectable trade dress. For more information on trade dress infringement and other issues surrounding your business’ intellectual property, contact a qualified trademark lawyer.