Can I Trademark the Appearance of My Website?

Considering these times, everyone tries to comute its activity online as much as possible. The fierce competition and the originality of your brand and website makes you want to be sure no one tries to duplicate your hard work, that is why is natural that you might want to know if and how you can trademark a website. After all, you can definitely trademark a word mark or symbol that represents your business to protect your defining visual elements from other people who may want to use the same elements.

But can you trademark an entire website’s visual appearance? Lots of modern websites are based on similar templates and can end up looking quite a lot like one other so that can mean a ”no”. While you can likely copyright the content on your website to protect against other people copying it, websites cannot function per se as trademarks because they contain a large amount of varied content that changes often. Trademarks are distinctive and unique words and images that represent your brand and your brand alone.

Trademarks are very common in business, and they offer great amounts of protection to businesses that rely in part on their visual identifying marks and words to maintain their brand image. Without this protection, anyone would legally be able to use a word or logo for their own gain. Trademarks also signal to customers that they are buying the products they think they are. If they know that one brand with a specific trademark is trustworthy, they can feel secure that the trademark will always represent reliability and not have to worry that a less trustworthy company is using the trademark to trick people.

More suitable protection in this case is the Trade Dress concept: What It Does and Doesn’t Cover

The distinctive packaging or design of a product that promotes the product and distinguishes it from other products in the marketplace — for example, the shape of Chanel no. 5 fragrance bottles. Trade dress can be protected under trademark law if a showing can be made that the average consumer would likely be confused as to product origin if another product were allowed to appear in similar dress.

So, the concept of “Trade Dress” may be the way to protect a particularly unique and personalized website design. Trade dress, outside of the digital realm, refers to the whole effect surrounding a service or product. This can include packaging for a product or the appearance of a building for a restaurant, like McDonald’s. These are some examples of what is considered trade dress. As it applies to a website, your design would have to be very distinctive to be considered trade dress, or it could be a site, like the Google homepage, that has become distinctive over time due to familiarity. Also, you cannot claim the protection of trade dress for elements that are purely functional, because this would prevent other competitors from using pivotal elements that are key for functional use of something.

Another element that has to be present when considering whether a trade dress protection infringement has happened is the similarity between two sites. If they only mildly resemble one another (same layout, similar icons, etc.) there might not be much that can be done. If two sites have so much in common that people could get them confused, then it may be a good idea to contact a lawyer. No one wants their hard work to be stolen, whether that work is a logo, packaging design or website layout.

If you are in any way confused about the finer points of trademark and intellectual property law, you may want to speak with an attorney.