When designing a website, creators may find themselves seeking inspiration from third-party sources; however, website designers need to be cognizant of when inspiration crosses the line to trade dress infringement.
Trade dress is the overall look and feel of a product or service that indicates or identifies the source and distinguishes it from others. Trade dress can be packaging (Coke bottle), restaurant décor (Mexican restaurant), the overall design of a retail store (Apple, Inc.), and websites. Protected elements of trade dress are the non-functional physical details and designs. Such elements can include features such as size, shape, color, color combinations, texture, or graphics.
Over the past decade, there has been a growing body of case law finding that the appearance of a website may be entitled to trade dress protection. Trade dress protection can apply to the site’s overall visual and interface design. This includes shapes, layouts, graphics, colors, frames, sounds, and arrangement of visual elements and features such as buttons and menus. It can also apply to the general mood and impression created by the website.
While determining what constitutes trade dress infringement for websites can be subjective, some things you may want to keep in mind when designing a website include the following:
Trade dress protection typically applies to distinctive non-functional elements of websites.
If there is a unique element of a third-party website you would like to incorporate, err on the side of caution. If it is from a competitor, consider moving on.
Create a unique color palette based on the unique elements of your graphics and design.
Ensure your website does not have the same look and feel as a third-party site. When in doubt, get a second opinion.
Ensure you either own or obtain the proper license to every image incorporated within your site (protected under copyright law).
Look into registering your trademarks (words and designs).
While this article strives to provide general information on trade dress infringement, this article does not contain legal advice and I highly recommend that you speak with your intellectual property attorney for further guidance.
If you are a website creator and have questions or if you believe your website design has been infringed, please contact O’Neill Tran Law at katie@oneilltranlaw.com or 707-559-8690.