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Can I Trademark the Appearance of My Website?

Since the Internet is largely a visual medium, people creating Web sites seek a unique look, one that will distinguish their site from the untold numbers of others in cyberspace. Whether someone can protect the visual appearance of a Web site from copying by others is one of a host of intellectual property questions the Internet has raised.

Unique Appearance Under Trademark Law

The need to distinguish one person's products or services from another's is at the heart of trademark protection. Typically, this is accomplished through a word, symbol, or combination of the two used in conjunction with one entity's goods or services. Trademark protection serves the public interest by making the public aware of what person or company has produced a particular product. This helps the public to make decisions as consumers. When we use products identified by a particular trademark, and like the way they function, we can return to that manufacturer, as identified by its trademark, for additional goods or services. By the same token, if we are unsatisfied, the trademark helps us to avoid that product in the future.

Web Pages Cannot Typically Function as Trademarks

Trademarks are visual in nature, but not everything that may be seen or presented to the eye can be a trademark. A trademark is a word or words, a symbol, a device, or a combination of these things used to identify the source of a product or service. Adidas is a trademark, the Nike swoosh stripe is a trademark, and the hood ornament of a Mercedes Benz is a trademark. A good trademark is easy to recognize, no matter what it's placed upon. A cap with the Mercedes symbol should be as recognizable to a Mercedes customer or fan, as a car with the same emblem. A web page, however, is dissimilar to these examples of trademarks. Imagine a shoe, or a cup, or a bicycle with a picture of a web page on it. A web page has too much information and changes too often to function well as a trademark. Yet the principles of trademark law, stressing the distinctive appearance of one product or service as compared to another, reach beyond trademarks themselves.

"Trade Dress" Protection for Web Pages

Web pages fall more readily under the concept of "trade dress." This concept refers more broadly to a product's physical appearance, including its size, shape, texture, color(s), graphics, and other characteristics. A few courts have issued injunctions--a command from a court to cease certain conduct--against Web sites that bore such a similarity to another well-known Web site as to confuse people over who actually maintained the site. The U.S. Supreme Court established the standard a person wishing to protect certain trade dress must demonstrate to win in court. First, the trade dress must be distinctive, either because it is inherently distinctive, or because it has acquired distinctiveness over time through public recognition. Second, the trade dress must be nonfunctional. Third, and finally, the trade dress of the defendant (person being sued) must be likely to cause confusion as to the source of the product or service.

Whether a Web site is inherently distinctive would seem a judgment call. Most Web site designers are shooting for a unique look, yet, that can make it easier, or harder, for any one site to stand out. For popular Web sites this will be of less concern, for they may acquire distinctiveness, that is, recognition by the public, through their popularity. Many of us, for example, might recognize immediately the Yahoo or E-bay home pages.

The requirement that trade dress must not be functional looks at its impact on the competition. Trademark law helps to prevent unfair competition by stopping manufacturers from stealing customers by using their competitors' marks. But the competitors still have a right to compete in the marketplace. If companies could secure exclusive rights in functional aspects of products, this would close others out of the market by preventing them from making the product. An airplane manufacturer, for example, could not secure trademark protection for airplane wings. With web pages, the functional aspect is hyperlinks. The owner of a Web site cannot secure trade dress protection in hyperlinks, and thereby prevent others from featuring them.

Likelihood of Confusion

The last issue a court would address in examining one company's claim that another infringed the trade dress of its Web site is the likelihood of confusion between the two sites. The company bringing the trade dress claim would attempt to prove that people surfing the web believed the other Web site was the suing company's site. Web sites have not yet secured definite trade dress protection, but the means for seeking such protection are at hand, and courts are beginning to recognize infringement claims in this area.

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