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Historically, trade dress protection has been afforded to the packaging and labeling of goods, but recently, courts are extending trade dress protection to the “look and feel” websites. Continue reading for a summary of trade dress protection of a website.
Photo Credit: Serge Kij
The “look and feel” of a website does not include material that is protected under copyright law. Protection under copyright is afforded to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). However, copyright law does not protect ideas or concepts. For example, website databases, photographs, or electronic newsletters may be protected under copyright law, but the overall website itself is not afforded protection.
Although the website itself is not afforded copyright protection, elements of the website that create the “look and feel” of the site may be afforded protection under a form of trademark law known as trade dress. As mentioned in “Trade Dress Protection,” trade dress protects the overall appearance and presentation of a product. It was developed as a mechanism to prevent consumer confusion because when a consumer purchases a certain product, they identify that product with its mark or appearance and expect a certain type of quality. Affording this type of protection allows consumers to reasonably assume that products that appear similar are from the same provider.
Since this “look and feel” protection of a website under trade dress is fairly new, it is much harder to define. The courts have recognized two layers when considering the “look and feel” of a website. These two layers include the visual design and the interface design. Combining these two layers incorporates static elements, interactive elements, and the overall style or impression. Specifically, “the ‘look’ [includes] aspects of a website’s design including the colors, shapes, layouts, and typecases.”Conference Archives, Inc. v. Sound Images, Inc., 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010). The “feel” corresponds to certain dynamic navigation elements, including buttons, boxes, menus, and hyperlinks. Id.
The two part test to assert website protection under trade dress includes:
Unlike other trade dress claims for product packaging that do not require a showing of secondary meaning if the trade dress is inherently distinctive, case law requires a showing of secondary meaning in a website trade dress case. To learn more about how courts have recently devoted little time to classifications of product design, which historically required a showing of secondary meaning, and product packaging, which only required a showing of distinctiveness, to determine if a showing of secondary meaning is required, visit “Secondary Meaning of Trade Dress.”
To learn more about trade dress protection for a website, contact Revision Legal’s trademark attorneys through the form on this page or call (855) 473-8474.
Courts that have extended trade dress protection to websites have focused on the combination of visual elements that together create a distinctive overall commercial impression. No single element — a color scheme, a layout, a font choice — is typically sufficient standing alone. Rather, it is the overall combination of these elements, as perceived by consumers, that can constitute protectable trade dress. Plaintiffs have successfully argued trade dress protection over distinctive combinations of: a specific color palette consistently used across pages; unique navigation structure and menu architecture; the arrangement and proportion of visual zones such as headers, sidebars, and content areas; distinctive use of whitespace and typography; and recurring visual motifs such as icons, buttons, or imagery style.
Like all product design trade dress, website trade dress cannot be inherently distinctive under Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000). A website operator asserting trade dress infringement must prove that its website design has acquired secondary meaning — that consumers associate the particular look and feel with a single source. This is a significant evidentiary burden for newer websites or those that operate in visually crowded markets where many sites share similar design conventions. Evidence of secondary meaning for website trade dress typically includes the duration and geographic scope of use of the particular design, advertising and marketing that specifically calls attention to the website’s appearance, consumer survey evidence, media coverage describing the website’s distinctive appearance, and evidence that competitors have intentionally copied the design.
Website design elements face a meaningful functionality challenge because many design choices serve both aesthetic and utilitarian purposes. A clean, minimalist homepage layout may be commercially distinctive, but it also reduces cognitive load and improves conversion rates — a utilitarian advantage. Navigation conventions such as hamburger menus on mobile, search bars in the top right, and shopping carts in the top right corner are so widely adopted because they function well, which makes it difficult to argue they are non-functional for trade dress purposes.
Successful website trade dress claims tend to focus on the specific, idiosyncratic combination of design choices that go beyond industry convention. If your website’s trade dress includes design elements that serve no utilitarian purpose beyond identifying your brand, and if competitors have multiple alternative design approaches available to them, the functionality bar is more likely to be cleared.
Website operators who want to preserve the option to bring trade dress claims against copycats should take several proactive steps. Document your design process: preserve design files, wireframes, and design briefs that show the creative choices made in developing your website’s appearance. Maintain a consistent design: frequent, substantive redesigns can make it difficult to establish that any single iteration has acquired secondary meaning. Monitor your market: use tools that alert you to new entrants in your space and document similarities when competitors launch sites that resemble yours. Consider augmenting trade dress rights with copyright registration for original graphical elements on your site — logos, custom illustrations, and photographs — which can be registered and provide statutory damages access that trade dress law does not.
Website trade dress claims require careful evaluation of secondary meaning, functionality, and likelihood of confusion — and strong factual development before any lawsuit is filed. Revision Legal’s trademark attorneys advise businesses on protecting the distinctive visual identity of their digital properties and on pursuing or defending against trade dress infringement claims in federal court. Contact us to discuss whether your website’s look and feel qualifies for trade dress protection and what steps you can take now to strengthen that protection.
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