"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.