This post discusses whether and how you can protect your website’s “look and feel“.
The reason you would want such protection: Your website has particularly effective visual and interactive elements that help promote your business. You would not want another website to copy those elements, thus make your website and your business less special.
Look and Feel as Trade Dress
Look and feel falls in the category of trade dress, i.e., visual appearance that signifies the source of a product or service. You may be able to obtain a federal trademark registration for the non-functional elements of the website’s look and feel and bring suit against infringers based on that registration.
Look and feel is not eligible for copyright protection because look and feel is not a work of authorship. (Please see Copyright Protection in One Easy Lesson.)
Design Patents for Look and Feel
Update – February 22, 2013: Apple’s recent $1 billion-plus legal victory over Samsung – although it addressed mobile devices – suggests that design patents could protect the look and feel of websites, as well.
After a 13-day trial and three days of deliberation, a federal court jury determined that Samsung infringed Apple’s design patents (see, especially, patent D604,305, which shows the now-familiar iPhone screen). Furthermore, the jury determined that the iPhone 3G trade dress was associated with Apple and was infringed by Samsung.
While appeals may keep the Apple-Samsung case from a final resolution for quite some time, the trial court’s decision upholding the vast majority of the jury’s verdict says that design patents for user interfaces must be taken seriously.
Further update: On May 18, 2015, the U.S. Court of Appeals for the Federal Circuit reversed the trial court decision in part for a lack of evidence that Apple’s trade dresses were non-functional (Apple v. Samsung). However, the portion of the decision pertaining to design patents was upheld.
Dana H. Shultz, Attorney at LawÂ +1 510-547-0545Â dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.