Why yes, it seems that you can.
What is “Trade Dress”?
Trade dress is like a trademark, but for the visual elements of branding.Trade dress is like a trademark, but for the visual elements of branding. So, while the name Coca-Cola is a trademark, the distinctive shape of the Coke bottle is protectable as trade dress.
Let’s get a more formal definition in here:
Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property.
Can you have trade dress for a website?
Well, it’s not 100 percent settled yet, but courts are certainly showing a willingness to extend trade dress protection to websites. A recent Northern District of California decision gives some advice on bringing such a claim, including what needs to be in the initial pleading documents.
How do you establish a protectable claim?
The court in Ingrid & Isabel, LLC v. Baby Be Mine, LLC stated that, in order to establish a claim for trade dress infringement, they had to show one of two things with regard to the “look and feel” of their site:
- it is inherently distinct; or
- it has acquired “secondary meaning”
I have covered distinctiveness with regard to trademarks in a previous post. However, with regard to trade dress of a website, the California court suggested that inherent distinctiveness for the look and feel of a website is impossible. Particularly in this case, where the design elements of the site included “patterned wallpapers, pregnant female models and handwritten logos” that were common in that niche, maternity clothing.
Here’s the two sites at issue. They don’t seem too similar to me, but one or the other may have changed as a result of the litigation.
Inherent distinctiveness explained:
Inherent distinctiveness means that the mark itself (or the trade dress, in this case) allows the consumer to immediately recognize the brand and the product it represents.Inherent distinctiveness means that the mark itself (or the trade dress, in this case) allows the consumer to immediately recognize the brand and the product it represents. This is in contrast to a mark that is merely descriptive or suggestive of the product, like using “Salty” as a brand name for a food that is salty or “Blu-ray” for optical drives which use blue lasers to read the data.
A mark with inherent distinctiveness would be Exxon, which is a made-up word that is instantly recognizable as that brand, or Apple (for the electronics brand) because the use of the Apple mark is arbitrary as to the product it represents (rather than being a brand name for an apple-selling company).
However, the court found that the issue of secondary meaning had questions of fact that a jury should hear.
What is secondary meaning?
The blue color and other aspects of the site aren’t inherently distinctive; they have developed secondary meaning in the eyes of Facebook users and the general public.In trademark law, when a mark doesn’t have inherent distinctiveness, there must be “secondary meaning” in order to get protection.
This means that the owner of the brand (or website) has worked to create a mental connection between that trade dress and the consumer. To prove this, you would have to show evidence, like a survey of customers that shows they associate the mark with the product. Another type of evidence would be proof that an infringer intentionally copied the look and feel of the site.
For example, if you wanted to create a social network and you copied Facebook’s color scheme, font and the look of the news feed, you could potentially be liable for trade dress infringement. The blue color and other aspects of the site aren’t inherently distinctive; they have developed secondary meaning in the eyes of Facebook users and the general public.
This is yet another thing that website creators and bloggers should be aware of, particularly when using a site them that seeks to copy the look and feel of another popular site (I’m looking at you, Pinterest-like WordPress themes…).
If you are a site creator and want a legal opinion on an issue like this or any other legal services, why not contact an attorney? For those interested in some legal issues surrounding content creation and game development, check out my free eBooks!