Trade Dress

By Liz Brown*

A pdf version of this article may be downloaded here.

 Introduction 
I. Copying Websites’ Look and Feel: A Growing Threat to E-Commerce 
A. The Nature of Look and Feel Copying 
B. The Economic Impact of Look and Feel Infringement 
II. Using Copyright or Trade Dress to Protect Website Look and Feel 
A. The Ambiguous Nature of Look and Feel Protection 
B. The Limits of Copyright Law in Protection Look and Feel 
1. The Copyright Office May Not Register “Look and Feel” Elements 
2. Judicial Use of Copyright Claims in Look and Feel Cases 
C. The Limits of Trade Dress Law to Protect Website Look and Feel 
1. Articulating the Elements of the Alleged Trade Dress 
2. Proving Distinctive Trade Dress 
3. Secondary Meaning in the Website Context 
4. The Difficulty of Proving Non-Functionality 
5. Likelihood of Confusion in Look and Feel Cases 
D. The Threat of Copyright Preemption in Look and Feel Cases 
E. New Technology Requires a New Framework 
III. Proposing a Trade Dress-Based Solution for Look and Feel Infringement 
A. A Multi-Factor Test for Website Look and Feel Infringement 
1. Overall Similarity 
i. Fonts and Formatting 
ii. Color Scheme 
iii. Sound Effects and Animation 
iv. Symbols, Logos and Other Marks 
v. Layout and Arrangement 
vi. User Experience Designer Testimony 
2. Proximity of Products or Services in the Relevant Market(s) 
3. Intentional Copying and Other Fraudulent Measures 
4. Likelihood of Confusion 
5. Additional Considerations 
B. Designing an Effective Damages Scheme 
IV. Additional Issues 
Conclusion

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