Trade dress law, like trademark law, is governed by the Lanham Act, and it functions to prevent consumer confusion by ensuring that a consumer’s reliance upon the distinctive features associated with a single source are not copied and associated with another business and its products.
In other words, protection under trade dress is meant to permit consumers to reasonably assume products or websites that appear similar have the same owner. When it comes to websites, trade dress protects consumers who can reasonably be misled by sites that appear similar enough to confuse about who the owner is.
To prove trade dress infringement for a website, a plaintiff has to show: (1) the trade dress is distinctive (just by looking at the site as a whole you’d know who the owner is) (2) the infringing website causes confusion to the public as to the owner of the site (that is, it creates “a likelihood of confusion”), and (3) the trade dress is not functional, in other words it is not required for the infringers product or service to work properly.
While the law is still developing in this area, being aware of how trade dress law is important for small business owners. To ensure that you maximize the impression of your brand, you should take care to populate your website with elements that are not only distinctive, but also that are legally protectable.
People will always try to imitate good original work, but knowledge of how to use federal copyright protection and trade dress is a powerful tool for preventing look-alike competitors from copying the look and feel of your website.
This article has been edited and condensed. Disclaimer: This article is for informational purposes only and no attorney or client relationship is formed by or through this article. It is not legal advice.
Jana Gouchev, Esq. is an intellectual property and business attorney, and the founder of New York-based Gouchev Law. Jana is counsel to start-ups, fashion houses, celebrities, coaches, high-profile health & fitness experts and creative professionals. She works with visionaries to help them use the power of law and savvy business strategy to create profit powerhouses. Connect with @GouchevLaw on Twitter.
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