nical elements that determine how a web- site appears: color—as defined by a “hexa- decimal notation”; orientation—the mea- surement of elements and layout in pixels; and code—the Hyper Text Markup Lan- guage (HTML) instructions.84
Naturally, the
closer one website mimics another techni- cally, the more viable a claim of trade dress infringement becomes. The “look and feel” of a website, how-
ever, is broader than its technical elements. The court in Conference Archives noted that the “look” of a website corresponds to its “visual design”—colors, shapes, layouts, type cases, shapes—readily understood un- der existing trade dress doctrines.85
“Feel,”
on the other hand, presents a “new wrin- kle” and “corresponds to certain dynam- ic navigation elements, including buttons, boxes, menus, and hyperlinks.”86
“Feel” re-
lates to the user’s interaction with the func- tionality of the website, its “interface de- sign.”87
Together, “visual design” and “in- terface design” “encompass not only static elements such as particular photos, colors, borders, or frames, but also interactive el- ements and the overall mood, style or im- pression of the site.”88
The court conclud-
ed that the “look” and “feel” of a website combine “to form a protectable virtual ex- perience that provides the user with ‘cog- nitive absorption;’ a graphical user inter-
face that facilitates the development of an intuitive engagement.”89 Accordingly, the “look and feel” of a website corresponds to a firm’s reputa- tion and brand. It offers broader protection than copyright law as it allows a court to “fashion the scope of protection needed to shield a plaintiff from a ‘careful’ infringer who has wrongly imitated the ‘essence’ of a website without copying its specific tradi- tionally protectable elements.”90 Clearly, if a company has taken the time
and resources to create a unique website interface that is carried through the site, including updates and revisions, it should look to the Lanham Act for trade dress pro- tection. As well, in designing and brand- ing a website, a company would be wise to understand and pay heed to the require- ments of the Lanham Act to ensure that the site it is creating will be afforded trade dress protection.
Conclusion Developing law brings both good and
bad news for companies looking to protect the intellectual property contained in their websites. The good news is that the courts are beginning to extend the protections found in the Copyright and Lanham Acts to the content and design of websites. The
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THE VERMONT BAR JOURNAL • WINTER 2012
www.vtbar.org
Protecting Your Company’s Website
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