Copycats are the worst. Learn what you can do to stop them.
So you worked really hard to develop a distinct brand; to stand out from the crowd. Now you’re sitting in front of your laptop, mouth open in disbelief. A competitor has literally copied your website - a website that you worked hard and/or paid a lot of money to design. Is this legal? Is there anything you can do?
Welcome to Trade Dress.
What is Trade Dress?
Trade Dress is a valuable tool in your intellectual property toolkit. Intellectual property includes copyrights, trademarks, and patents.
Trade dress is a type of trademark. A trademark is any word, name, symbol, device (or a combination of any of the above) that distinguishes one person’s goods or services from another’s. In other words, trademarks protect brands. The Nike name, the Nike logo (the Swoosh), and the Nike slogan (“Just Do it”) are all registered trademarks of Nike, Inc. The key here is that a trademark indicates a source - it allows the public to expect a certain standard from anything that bears the mark.
Trade dress consists of the total image and overall appearance of a product. Famous examples of trade dress include:
The classic glass Coke bottle
The shape of the Hershey’s Kiss
The layout of the Apple store
The Chanel No. 5 bottle
The design of the Hermès Birkin Bag
The Christian Louboutin red sole
Trade dress is often used to protect product packaging or product design, but can also protect store layouts, brand colors, and websites.
Trade Dress vs. Design Patent vs. Copyright
It's important for website owners to understand what trade dress is and is not. Imagine a website where the owner has gone to great lengths to design the look and feel of the site. The website's design creates a certain impression, portrays a particular aesthetic, and signals the owner's brand. The website has blog posts, photos, and original artwork. Finally, the website features a novel user interface that greatly enhances the visitor experience. Could this website be legally protected?
Yes. But in different ways:
The look and feel of the website could be trade dress.
The blog posts, photos, and original artwork could be copyrightable.
The novel user interface could be eligible for a patent.
Bottom line: know the difference between your IP options!
How Can Website Design Be Protected as Trade Dress?
So given all this, what can owners do to protect the carefully designed look and feel of their websites?
Register the Trade Dress
Registration with the United States Patent and Trademark Office (USPTO) is the primary line of defense. As with any trademark, the benefits of registering trade dress include presumed validity, nationwide enforcement (as opposed to only state protection), and the potential to sue for statutory damages and to have the copycat pay your legal fees. Once trade dress has been registered for more than five years, it can become “incontestable”. While “incontestable” should not be confused with “invincible”, it does make an owner's life easier.
If someone has copied a website design, but the trade dress is not registered, there is still hope. Unregistered trade dress can still be protectable by law, though it requires more effort from the owner. To protect unregistered trade dress an owner must show that 1) the trade dress is inherently distinctive or has acquired secondary meaning, 2) the trade dress is nonfunctional (i.e. the design has an overall aesthetic purpose rather than a practical one), and 3) the infringer’s use is likely to cause confusion among consumers.
Enforce the Trade Dress
Whether the trade dress is registered or unregistered, it is the responsibility of the owner to defend her trade dress. When it comes to copycats, sometimes it’s enough to send a cease & desist letter. With more brazen or determined copycats, it may be necessary to sue to protect the brand.
Stay Vigilant
A good brand is a valuable thing, and valuable things need protecting.
But the internet is a big place. How can a website owner even know that their site is being ripped off? While no method is 100%, brands often find out that they are being ripped by paying attention to abnormalities. For example, fans complaining that someone else is copying you, other websites that link to your material without permission, or calls from potential customers asking about products that you don’t actually sell.
One way to actively search for copycat websites is a service called Copyscape. While it won’t catch everything, it can be helpful to catch plagiarism. For example, if someone has copied one of your blog posts, Copyscape can help catch it.
Need Help?
Questions about intellectual property? Wondering how to protect your creative career or business? Book a call today with Bevel Law PLLC.
This information is not legal advice and should not be relied on to make legal decisions. Readers should seek legal advice from an attorney before taking action regarding the topics discussed in this blog.