Has someone ripped off the “look and feel” of a website — YOUR website!? Depending on the circumstances, you could have grounds for a”trade dress” claim.
The Differences Between Copyright, Trademark, and Trade Dress
A copyright protects original works (art, writing, et cetera); a trademark protects the marks exclusively associated with goods or services (i.e., Nike swoosh). But, what if an unsavory character doesn’t use your logo, nor steal your content, but copies the colors, look, and feel of your website, to the point where it’s unmistakable?
The answer to the “look and feel” infringement issue is “trade dress.”
Trade dress infringement in the United States involves two main elements:
- 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 action in the first element must “likely […] cause confusion, or […] 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.”
When Does Trade Dress Infringement Apply?
When does trade dress infringement apply? Cases vary; but think of it this way: When the visual presentation of a product or service is so unique to a brand that copying would cause confusion, trade dress rules probably apply.
For example, imagine if a fast food burger chain started 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.”
Functionality Plays A Role In Trade Dress Infringement Cases
To win a trade dress claim, the object in question cannot be “functional” — meaning it cannot have a purpose beyond associating the good or service with its owner. For example, a plaintiff couldn’t claim trade dress infringement only because someone else happened to use the same tires on their company vehicles as the plaintiff.
Trade Dress and The Look and Feel of a Website
So how does trade dress law apply to websites?
When a competitor copies the look and feel of a website that has nothing to do with the functionality of the website, courts have permitted trade dress infringement cases to move forward.
For example, in the Blue Nile Inc. v. Ice.com and Odimo, Inc., 478 F. Supp. 2d 1240 (W.D. Wash. 2007), the plaintiff sued for trade dress infringement, accusing the defendant of copying BlueNile.com’s “look and feel.”
The defendant moved to have the claim tossed, but failed.
The USPTO’s website advises attorneys to consider whether the object at issue is:
- A “common” basic shape or design;
- Unique or unusual in the field in which it’s used;
- 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;
- Capable of creating a commercial impression distinct from the accompanying words.
Speak With A Trade Dress Attorney
Trade dress infringement, particularly as it relates to the look and feel of a website, is a complicated issue. Special measures should be taken when initially designing brand materials to avoid infringing on another party’s trade dress, and to ensure that it’s legally unique. For more information on trade dress infringement and other issues surrounding your business’ intellectual property, contact a qualified intellectual property lawyer.