Website “Look and Feel” Protectable Trade Dress

Trade dress is important area of intellectual property.  Traditionally, trade dress is the overall appearance or image or design of a product or its packaging, which serves to signify the source of the product to the consumer.  Although trade dress protection has extended beyond simple packaging and product design, it is not always clear what might constitute trade dress.  One area of great importance to many businesses is whether there is protectable trade dress in their website.

Web Site Trade Dress

In a recent case is the U.S. District Court for the Northern District of California, Ingrid & Isabel, LLC v. Baby Be Mine, addresses the increasingly relevant question of what constitutes protectable trade dress for a website.  Although prior trade dress cases found that a website’s “look and feel” can constitute protectable trade dress, at least one case did so to protect the “look and feel” of a website that was, itself, the product, not merely one used to market products.  In other cases, the court did not find trade dress due to the parties’ failure to specifically identify the elements of the website comprising the trade dress.

Generally speaking, trade dress refers to the elements that make up the visual appearance such that the purchasing public associates the trade dress with a single source for the goods.  The courts have found protectable trade dress in the “look and feel” of everything from the color of pads used on dry cleaning equipment, to the colors and shape of a fast food restaurant.  This case analyzes whether the “look and feel” of a website used to market products can constitute protectable trade dress.

In Ingrid & Isabel, LLC v. Baby Be Mine, both companies sell maternity waist bands (stretchy cotton belts that hold up the clothing for pregnant women) as well as other maternity clothing, and both companies operate a respective website.  The parties were not new to litigation, and in fact Ingrid & Isabel had previously sued Baby Be Mine for patent infringement over its band design, trademark infringement based on allegations that Baby Be Mine’s “Belly Band” was confusingly similar to Ingrid & Isabel’s “Bella Band,” as well as for unfair competition.  The present case alleges claims of breach of contract, and trade dress violations under the Lanham Act.

To prevail on a claim of trade dress, a party asserting trade dress must demonstrate that its trade dress is inherently distinctive; that its trade dress is non-functional; and that the defendant’s product creates a likelihood of consumer confusion.

In its Lanham Act claim, Ingrid & Isabel alleged that Baby Be Mine’s use of certain words and phrases on its website and marketing materials, and the overall “look and feel” of its website were distinctive and non-functional.  Ingrid & Isabel recited specific elements contained on its website that it claims had been copied by Baby Be Mine, including cursive script used in the headers, the pale pink-orange color of the lettering, the poses of the models, photographs of models wearing white tanks with jeans, with long naturally wavy hair, where the model is featured head to mid-thigh, model photographs featuring mouse-over change of whimsical, casual poses to display all angles of the product, certain patterns on the website ‘wallpaper’ and other similarities.  Ingrid & Isabel argued that the features on the Baby Be Mine site were similar enough to those specifically recited that it could lead to likelihood of confusion for consumers.

Regarding proof of its trade dress violation claim, Ingrid & Isabel offered evidence of direct copying, which courts have recognized as being relevant to a determination of secondary meaning.  Further, the court recognized that many of the specific elements listed, such as the color and pattern of wallpaper, particular poses of the model, color of the script were non-functional elements.  Finally, the court found that Ingrid & Isabel had created triable issues of fact with respect to the issue of likelihood of consumer confusion.

Because Ingrid & Isabel had created a triable issue of fact with respect to each element required to prove its trade dress violation claim, the court denied Baby Be Mine’s request for summary judgment.  The survival of this claim provides the possibility for a finding that the “look and feel” of the Ingrid & Isabel website contains protectable trade dress.  The outcome of this issue in the case may provide some guidance as to what may be required to claim trade dress in a website, and every company with a prominent web presence may be wise to pay attention to this case.

Trade dress rights are valuable intellectual property rights.  If you have questions about trade dress issues, you need an experienced trademark attorney.  Anna Vradenburgh is a well-respected, business-minded expert in trademark matters.  For more information, visit her website, or contact Anna at (818) 488-8146.  This article is for educational purposes only and nothing in this article is intended to be, or should be considered to be, legal advice.

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