TRADESITE OR WEB DRESS?: TRADE DRESS PROTECTION FOR WEBSITE INTERFACES by

Your client is the fortunate owner of a dot-com business that started up in the late 1990’s and survived the “dot-bomb” days of 2000. In fact, your client’s business, which is entirely operated from an Internet website, is quite successful. The website is composed of various elements that give it a distinct “look and feel.” Your client discovers one day that a competitor’s Internet website has taken on a familiar cast. The competitor’s site has incorporated a number of the elements found in your client’s website. In fact, the logo, layout, color scheme, fonts, user interface, and other graphical features closely resemble those found on your client’s site. Your client demands that you send a cease and desist letter to the competitor, arguing that the competitor has copied the look and feel of your client’s website. On what legal grounds can this be done? The answer to this question may be found in the law of trade dress protection. Trade dress is the overall appearance of a product and its packaging. Not only do conventional packaged consumer goods possess a trade dress, but entire commercial enterprises can do so as well. Such trade dress covers architectural features, color schemes, and décor. To be protectable, trade dress must first be distinctive-either inherently or by virtue of secondary meaning. Second, the trade dress must be non-functional, which is to be determined by considering all the elements of the trade dress in combination, not in isolation. This article considers the potential liability of those who use appropriate the look and feel of the of another’s website. We begin with an overview of the law of trade dress and the scope of protection afforded by the Lanham Act. The availability of protection under alternative intellectual property regimes is considered alongside this discussion. Next, the article considers the applicability of trade dress protection to websites. Finally, the author concludes that trade dress law (or shall we refer to it as tradesite or web dress law?) can afford useful protection for a website’s graphical user interface.