A website’s distinctive appearance, layout, and design qualities—its “look and feel”—are often the most important and effective tools with which a company can make a first impression on consumers and market its brand. Now, according to one federal court, companies can use trademark law to protect their unique website designs from imitators.
On October 1, 2014, in Ingrid & Isabel, Inc. v. Baby Be Mine, LLC, the U.S. District Court for the Northern District of California ruled that the look and feel of a website used to market and sell products and services can constitute protectable trade dress under the Lanham Act. Here, the plaintiff, Ingrid & Isabel, Inc. (“I&I”), and the defendant, Baby Be Mine, LLC (“Baby”), were both online retailers of maternity clothing. I&I alleged that Baby had intentionally copied, in an attempt to imitate I&I, many specific characteristics of I&I’s website. These included: (i) the use of a logo in a “feminine script in pastel pink-orange hue”; (ii) photographs of models posed in similar positions, “featured from head to mid-thigh, wearing white tanks with jeans, with long naturally wavy hair”; and (iii) the colors, patterns, fonts, and wallpaper used throughout the website. The court held that Baby’s arrangement of similar, non-functional design choices on its website was, in part, sufficient to create a triable issue of fact as to the elements of I&I’s trade dress claim, and denied Baby’s motion for summary judgment.
This ruling represents a significant step forward for companies looking to protect their brand’s goodwill online. For the first time, a court has recognized that a website’s design can serve an important brand-identifying purpose worthy of trademark protection even though the website is not the product itself, but rather a marketplace in which products and services are sold. Previous case law suggested that a website could constitute protectable trade dress only if the website itself was the product. Courts had called the idea of protecting the trade dress of other websites a “novel theory,” but had not ruled on the issue.
With the Ingrid & Isabel ruling, the law seems to have caught up with the times, giving the trade dress of online stores the same protection as that for physical stores. In the same way the distinctive décor of a Mexican restaurant or the layout of a physical wine store can be protectable trade dress, the court recognized that the look and feel of a website—a virtual store—can be a protectable form of intellectual property. This is particularly important in today’s economy, as this year sales in U.S. online stores are expected to top $300 billion.
As we have stated before on Trending Trademarks, a “trademarked look” is not just a popular saying. By creating and consistently using a distinctive look and feel for its website to distinguish itself from competitors, a company may be able to protect its deliberate design choices from copycats. Still, it is yet to be seen whether other courts across the country will adopt this standard. Stay tuned to Trending Trademarks for future updates as the law develops.
The case is Ingrid & Isabel, LLC v. Baby Be Mine, LLC, case number 13-cv-01806-JCS, in the U.S. District Court for the Northern District of California.