Is Your Website’s Image Protected Under Trademark, Copyright or Trade Dress?

by Fred Abramson on September 20, 2010 · 4 comments

You have spent hours of time and a significant amount of cash creating a website for your business. You are up late surfing on Stumpleupon and to your amazement, a page comes up that has the same look and feel as your website. Can you sue?

According to Richard Raysman, a partner at Holland & Knight, and Peter Brown, a partner at Baker & Hostetler writing in the New York Law Journal the law remains unsettled when it comes to using trademark law to protect a site’s distinctive interface and design elements.

Copyright law will usually not protect the overall layout of a web site. However, unique website design elements that are not protected under copyright could constitute trade dress which can be protected.

According to the New York Law Journal article, one of the leading reported cases that held that a site’s “look and feel” may form the basis for trade dress infringement is Blue Nile, Inc. v., Inc., 478 F.Supp.2d 1240 (W.D. Wash. 2007). In Blue Nile, the court held that the plaintiff, an online retailer, could pursue a trade dress claim based on the defendant’s alleged copying of the “overall look and feel” of the plaintiff’s commercial website.

What Should You Do to Succeed on a Trade Dress Claim?

  1. You must show that your design is unique and has attained secondary meaning. By “secondary meaning” it is clear to a customer that the goods or services being sold are from the same company.
  2. You must describe in words the specific parts of the website that was copied. It is not enough to simply attach a copy of the offending site.
  3. The copying of your website must be intentional.

If you have any questions regarding trade dress, trademark and copyright law as it pertains to websites, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

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