Websites have, in the past, relied primarily on textual or photographic elements to convey their messages. This fact has made it historically difficult for a business to support a claim that a competitor’s uncomfortably close emulation of its Internet content constituted trade dress infringement, in violation of U.S. trademark law under the Lanham Act. But that may be changing as the sophistication and importance of websites increases.
Modern websites are considerably more complex and content-rich than they were even five years ago. Those who frequent sites such as eBay® and Amazon.com® likely have come to associate those sites’ well-developed user interfaces with those companies to the same degree that shoppers at a Barnes & Noble® or Target® store would associate those stores’ design elements and merchandising practices with those businesses. Even sites without that degree of commercial traffic may enjoy great success in associating a successful web site design with a particular line of business. To the extent that a business can prove such an association, a handful of recent cases indicate that trademark law may provide the protections that some businesses need after all.
In Blue Nile, Inc. v. Ice.com, Inc., a 2007 case from the Western District of Washington, the trial court denied the defendant’s motion to dismiss the plaintiff’s claim that the defendant infringed its trade dress rights by copying the “overall look and feel” of the plaintiff’s well-known diamond-marketing site. While the court did not expressly sanction the use of trademark law to protect the “look and feel” of a website, it did nevertheless note that the theory deserved factual development in that case in order to assess its applicability. The court further noted that trademark law might provide the only basis for such claims, since more than one commentator has recognized that copyright law likely is insufficiently broad to cover a website’s overall format. In their briefing, the Blue Nile plaintiffs cited two earlier, unreported cases to support their arguments. In one, Peri Hall & Associates, Inc. v. Elliot Institute for Social Sciences Research, a 2006 case from the Western District of Missouri, the trial court granted the plaintiff’s request for a preliminary injunction prohibiting the defendant’s continued publication of a website that “copied the look and feel” of the plaintiff’s site and that further incorporated the plaintiff’s trademarks into the metatags for the site. In the other case cited by the Blue Nile plaintiff, Faegre & Benson LLP v. Purdy, a 2004 case from the District of Minnesota, the trial court there similarly granted that plaintiff’s request for a preliminary injunction based, in part, on the fact that the defendant there had published web page that featured “[plaintiff’s] nonfunctional trade dress… the appearance of which is confusingly similar to the trade dress of [plaintiff’s] web site” as well as the plaintiff’s trademarks.”
For many businesses facing infringement of their website content, it may be time and money well spent consulting with an attorney regarding the availability of a potential “cyber trade dress” claim such as those discussed in the Blue Nile opinion.
The Blue Nile opinion is reported at 478 F.Supp.2d 1240. The Peri Hall and Faegre & Benson opinions are available on Westlaw®, respectively, at 2006 WL 742912 and 2004 WL 167570.