It’s a common issue. A new website is being created, and the developer likes the design of the competitor’s website. We all (hopefully) know that trademarks, logos, images and text are proprietary and cannot be copied. What about the design itself?
Trade dress under the Lanham Act protects the overall look of a product, which may include the manner in which the goods or services are presented to purchasers. A famous example of trade dress is the shape of the Coca Cola bottle. There are a small number of courts that recognize that a website may be entitled to trade dress protection.
The challenge is that in many cases there are a limited number of ways to present information on a web page. In order to succeed in a trade dress action, the website design must be so distinctive and recognizable that there is a likelihood of confusion as to which company’s website the visitor has arrived at.
In a recent case, California joined the ranks of courts recognizing the possibility of trade dress protection for website designs. The website at issue sells weight loss supplements. When comparing the website designs, it seems clear that the original design was copied. However, since there are a limited variety of website layouts available, it is still an uphill battle to win such an action.
Bottom Line: It’s never a good idea to copy a competitor’s website design. Even if you will win a law suit, you will lose in expenses defending the suit. If you like the overall design of a website, by adjusting sufficient elements, rather than mimicking the original website, you will usually move yourself out of the trouble zone for a trade dress infringement claim.
Sources: Lepton Labs, LLC v. Walker et al., case number 2: 14-cv-04836 in the U.S. District Court for the Central District of California (filed September 23, 2014).