Since the beginnings of the modern fragrance industry, fragrance manufacturers have relied on secrecy to protect information about distillation techniques, product composition, and other elements of the production process. In the last century, however, increases in employee mobility and improvements to reverse engineering techniques have undermined the fragrance industry’s reliance on trade secrecy to protect its proprietary information. Patents and copyrights are similarly of limited efficacy as a means of protecting this information. Fragrance manufacturers may have some recourse in trademark and unfair competition law, however, specifically in the context of multisensory trade dress.
Every company strives for a unique and memorable website. There is a growing threat, however, that this valuable investment in website design will be copied by competitors without effective legal remedy and with potentially devastating consequences. The “look and feel” of a website – the immediate impression that makes a website recognizable, easy to use, and deserving of consumer trust – is not adequately protected by copyright, trademark, or any other intellectual property doctrine. Website look and feel protection falls into a chasm between copyright on one hand and trade dress on the other, neither of which adequately addresses this modern problem. While copyright protects fixed texts, it cannot offer the scope and fluidity of protection needed to capture the look and feel of entire websites. Trade dress falls short because existing law does not adequately address the blend of form and function essential to website protection. This article proposes the adoption of a multi-factor test adapted from trade dress law in order to secure more effective protection for websites and clarify that trade dress is the proper doctrinal home of “look and feel” protection.