COPYING COMPETITOR’S WEBSITE? THINK AGAIN.

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If you’ve put a lot of time and money into designing a distinctive website or online store, and a competitor comes along and copies your site’s look, what are your rights?  Can you file a lawsuit?  Yes, according to a federal court in a recent California case. The “look and feel” of a website is protected by the trademark laws.

Surprisingly, this is one of the first court rulings ever on this question.

In Ingrid & Isabel, Inc. v. Baby Be Mine, LLC, the U.S. District Court for the Northern District of California has made an important ruling.  The case involves two websites selling maternity products. Ingrid & Isabel claimed that a competitor by the name of Baby Be Mine had illegally copied its website design. Specifically, Ingrid & Isabel claimed that Baby Be Mine had copied (1) the idea of putting its logo in pink-orange pastel feminine lettering, (2) the use of models with long wavy hair, shown from head to mid-thigh, wearing white tank tops and jeans, and (3) the general colors, patterns, fonts and wallpaper of Ingrid & Isabel’s site.  Baby Be Mine filed a summary judgment motion arguing that the case should be thrown out.  It argued that there is little, if any, precedent suggesting that a cause of action can succeed on a claim that a website has been ‘copied.’

The District Court disagreed with Baby Be Mine.  It found that the case can and should be tried.  In the past, courts have ruled that the design of a physical store can amount to “trade dress” – such as the color scheme of 7-11 markets, or the distinctive décor of a Mexican restaurant chain. But this is one of the very first occasions in which a court has protected the design of online stores as well.

“Trade dress” refers to the distinctive way that a product is packaged or presented. Examples include the shape of a Coca-Cola bottle or the color of Tiffany’s blue boxes. You obviously can’t trademark the general idea of putting soda in a bottle or jewelry in a box, but if the color and shape are distinctive enough and are separate from the functionality of the product, then they’re protected, and a competitor can’t simply copy them.

Of course, websites are different from trademarks, which provide businesses with a number of additional rules to consider.  I’ve blogged about the importance of protecting trademarks in an earlier article (http://www.hammers-law.com/business-fraud/dont-skimp-protecting-trademarks/).  But differences aside, this ruling is important because it affirms that a website can be protected by the law.  In particular, a website can be a significant aspect of a company’s “trade dress,” and online shops now have legal recourse if their websites appear to have been copied by a competitor.

Stephen Hammers
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