That said, at least one district court in this circuit, in Crown Awards, dismissed a web- site copyright claim on the grounds that the alleged similarities were between un- protectable elements, and thus appears to have in fact dissected the work.42 In summary, the Copyright Act only pro- tects those individual elements of web- sites—such as source code, text, graphics and pictures—that are sufficiently original and creative. Because the Copyright Act preempts other potential sources of pro- tection, works that fall within the purview of the Act are either protected under the Act or not at all. Accordingly, when de- signing websites, companies should strive to create content that is sufficiently origi- nal and creative to merit protection. Regis- trants should take care to articulate clearly in their copyright applications those web- site elements for which the registration is sought. They should also stay abreast of any changes or updates to their websites that may require new copyright registra- tions. Finally, because the Copyright Act does not protect websites as a whole, we turn to trade dress protection under the Lanham Act.


Lanham Act Protection in General


A website’s most significant feature is its overall design and appearance, its “look and feel.” Establishing intellectual proper- ty protection for a website’s look and feel, then, should be of paramount interest. Pro- tection for the “look and feel” of a website begins with trade dress protection under the Lanham Act. In general, “trade dress” refers to an overall image that uniquely as- sociates a product, package, or design with a specific business or source.43


Because


protection under the Lanham Act may not overlap with protection under the Copy- right Act, trade dress protection essentially picks up where copyright protection leaves off.


Scope of Protection Trade dress is a form of trademark pro-


tection44


grounded in Section 43(a) of the Lanham Act. The Lanham Act was enact- ed to make “actionable the deceptive and misleading use of marks” and “to protect persons engaged in … commerce against unfair competition.”45


As held by the U.S.


Supreme Court, “protection of trade dress … serves the Act’s purpose to secure to the owner of the mark the goodwill of his busi- ness and to protect the ability of consum- ers to distinguish among competing pro- ducers.”46


The underlying purpose of the


Lanham Act is to protect consumers and manufacturers from deceptive representa- tions of affiliation and origin.47 Trade dress includes the “arrangement of identifying characteristics or decoration


www.vtbar.org


connected to a product, whether by pack- aging or otherwise, intended to make the source of the product distinguishable from another and to promote it for sale.”48


Trade


dress originally included only the packag- ing or dressing of a product but has been expanded to encompass the design or con- figuration of the product itself49 “look and feel” of websites.50


and to the Trade dress is


defined broadly and may include features such as size, shape, color or color combi- nations, texture, graphics, or even particu- lar sales techniques.51


Its protection of the


overall appearance of a business is consis- tent with the federal policy that strongly fa- vors vigorously competitive markets.52 Protection for distinct trade dress al- lows consumers to reasonably assume that products that appear similar are in fact from the same provider.53


If consum-


ers can be misled by confusingly similar trade dresses, consumers may be led to make misinformed decisions.54


Trade dress


law encourages designers to invest in the goodwill generated by their products so as to link a specific dress to a specific prod- uct, minimizing consumer confusion.55


This


goodwill encourages producers to create products of high quality benefitting soci- ety.56


The appearance and arrangement of a website, then, must connect to a particu- lar business in the mind of the viewer (think Google) to be considered for trade dress protection.


Trade Dress Enforcement Trade dress does not need to be regis- tered to qualify for protection.57


The Lan-


ham Act provides a private cause of ac- tion against any person who “in connec- tion with any goods … or any container for goods uses in commerce and word, term, name, symbol or device, or any combina- tion thereof … which … is likely to cause confusion, or to cause mistake, or to de- ceive … as to the origin, sponsorship, or approval of his/her goods … by anoth- er person … ”58


To state a claim for trade


dress infringement, the claimant must al- lege that (1) the dress is distinctive, (2) the trade dress is non-functional, and (3) there is a likelihood of confusion between its dress and another’s.59 The plaintiff may prove distinctiveness by showing either that the “intrinsic nature” of the dress serves to identify a particular source or that in the minds of the public, the primary significance of the dress is to identify the source of the product rather than the product itself (“secondary mean- ing”).60


however, plaintiff must always make the second “more difficult showing.”61


In the case of product designs, Even


then, a showing of secondary meaning is insufficient to claim protection of a design that is overbroad or generic. Trade dress


THE VERMONT BAR JOURNAL • WINTER 2012 29


Protecting Your Company’s Website


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