Trade Dress: Another Way to Protect Websites
The law around trade dress is an offshoot of trademark law. While trademarks typically consist of words, phrases, or logos, trade dress relates to things like shapes, patterns, or the combination of features.
The most famous example of trade dress is the iconic old-fashioned Coca-Cola® bottle with the modified hourglass shape. Just like trademarks, in order for trade dress to be protectable, it must resonate with the consuming public -- meaning that when a purchaser sees it, he or she must mentally connect it with the particular provider of the products or services.
The reach of trade dress is almost limitless. In 1992, the United States Supreme Court held that the distinctive décor of a Mexican restaurant was sufficiently unique to warrant protection as trade dress. More recently, Apple, Inc. was successful in its efforts to register the distinctive layout and design of its retail stores. Now, the courts seem to be moving into the digital age and giving a nod to the trade dress that might exist in online stores and websites.
A 2010 federal case in Pennsylvania is the first example of a time a court raised the possibility of a website being eligible for trade dress protection.
The idea has gained momentum. In an October 2014 decision, a federal court in California ruled that the “look and feel” of a commercial website could rise to the level of being protectable trade dress. If specific elements of a website can be identified as being trade dress, if the elements are distinctive and non-functional, and if the use of the distinctive features by others would confuse customers, then it may now be possible for the website owner to assert trade dress infringement claims.
This evolving theory supplements the copyright protection that is sometimes available for websites, and may very well represent a new enforcement tool for website owners.