How Trade Dress Law Might Protect Your Website Or App From Infringement

Trade dress can protect the "look and feel" of websites and apps, preventing infringement.

As any designer knows, websites and phone applications try to evoke a particular "look and feel." Those aesthetic qualities might be difficult to describe in a single word, but there is often an overall effect produced by the design and layout.

Such an overall effect is sometimes known as "trade dress." In the physical world, trade dress refers to the packaging of products—literally the way they are "dressed." Think of the famous light blue Tiffany's box or the design of a Coca Cola can. These are instantly recognizable to an average consumer, and are protectable as intellectual property.

How can you use the doctrine of trade dress to protect the design attributes of your website or app?

What the Law of Trade Dress Protects

A standard trademark consists of any word, phrase, or image that serves to identify the source of a good or service in the marketplace. Trade dress has a similar goal. It consists of all the various elements that are used to promote a product or service.

Trade dress might be the packaging, the attendant displays, and even the configuration of the product itself. It might include the manner in which a product is wrapped, or even the design of a restaurant chain, so long as these attributes signify the source of the product in the eyes of relevant consumers.

Like word marks and image marks, trade dress can sometimes be registered with the U.S. Patent and Trademark Office (USPTO) and receive protection from the federal courts. However, trade dress can also be protected through state-based unfair competition statutes or common law.

Applying Trade Dress Law to Websites and Apps

In recent years, courts have applied the doctrine of trade dress protection to websites and phone applications.

Importantly, separate trade dress protection does not attach to any element of a website or app that is separately protected by copyright law. For example, any text that you write, or any image that you design, would likely qualify for copyright protection because it is a creative work "fixed in a tangible medium of expression"—that is, was are written down. Such pieces of the website could be submitted to the U.S. Copyright Office for copyright protection. Indeed, if you have creative content accessible on your website, such as a long essay or creative images or photographs, copyright registration might be wise.

Similarly, your company's name or logo would be protectable as a trademark through registration with the USPTO. You can learn more about the registration process through the USPTO's helpful guide to trademark registration.

Trade dress is different from these separate and discrete elements of your site. It has to do with the overall look and feel—the colors, the format, and the overall qualities.

Imagine that your website for your flower business had doodles of lilacs in the background, was mostly orange with blue navigation bars on the left, and included animations of dancing flowers on the bottom. Now imagine that one of your flower competitors launched a website with almost the name general design. Even if the competitor's website used slightly different doodles, images, and text, your overall "look and feel" is still being copied. Because this could lead to consumer confusion, you might be able to sue for trade dress infringement.

If uncertain whether your website or app might qualify for some form of trade dress protection, you might wish to consult with an experienced intellectual property attorney who can provide you with additional information and strategies for protection.

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