Protect A Distinctive Website With Trade Dress Law

The appearance of a website, sometimes referred to as the "look and feel," serves as one of the most significant ways a company can quickly and directly convey its brand and image to a large number of consumers. It is as important as making a great first impression. Given the immediate brand-identifying role a website can play, many companies go to great lengths to develop a unique and distinctive website that attracts and retains consumers, and serves a source-identifying purpose. While imitation may be the sincerest form of flattery, when the design of a distinctive website is copied, it is infringement. Website owners will benefit from employing intellectual property law, and in particular, trade dress law, to protect their websites from unauthorized copying.

Historically, copyright was the body of law most often used to try to protect the overall appearance of software programs and the user interfaces of online works. But copyright has been replaced by trade dress over the last several years as the means by which brand owners can protect the look and feel of their website, and fend off competitors who adopt a similar and confusing Internet presence.

This article first appeared on law360.com on March 31, 2014 and can be read in full here.

Kristen McCallion is a Principal in the New York office of Fish & Richardson and Chair of the firm's Copyright Group. Ms. McCallion represents businesses in the consumer products, Internet, media, and interactive entertainment industries in copyright, trademark, trade dress, and unfair competition litigation in federal district courts, appellate courts and state courts.

Nancy Ly is an Associate with Fish & Richardson. Nancy counsels clients with respect to trademark and copyright matters and is experienced in trademark clearance, trademark prosecution, licensing, enforcement, and policing, as well as internet law matters including Uniform Domain Name Dispute actions. In addition, she also represents clients in trademark litigation matters before federal district courts and the Trademark Trial and Appeal Board and defends clients against claims of infringement.