Can I Trademark the Appearance of My Website?

There are so many things that a small business owner may need to trademark. For example, their business name, service mark, or brand name. You might wonder: Can I trademark the appearance of my business's website?

The short answer is: Yes, you can trademark elements of your website.

As a startup or entrepreneur, you should protect all the intellectual property you create. Trademarking the appearance of your website is one way to provide legal protection for your brand identity.

Since the internet is a visual medium, people creating websites seek a unique look that distinguishes them from others. One question is whether someone can protect the visual appearance of a website from copying by others. This article answers everything you need to know about trademarking the appearance of your website.

Unique Appearance Under Trademark Law

The heart of trademark protection is to distinguish one person's products or services from another's. Typically, this occurs through a word, symbol, or combination of the two in conjunction with one entity's goods or services.

You can get a trademark registration for the distinctive visual elements of a website, such as:

• Logo design

• Icons

• Color schemes

• Certain graphics

Why Trademarks Matter

Trademark protection serves the public interest. Trademarks make the public aware of what company has produced a particular product. This helps the public make decisions as consumers. When a person enjoys products identified by a specific trademark, they return to that manufacturer for more goods or services. By the same token, if the person does not enjoy the product, the trademark helps them avoid it.

Web Pages Cannot Typically Function as Trademarks

Trademarks are visual, but only some things can be a trademark. A trademark is a word (or words), a symbol, a design, or a combination of these things used to identify the source of a product or service. Adidas is a trademark; the Nike swoosh is a trademark.

A good trademark is easy to recognize, no matter what it's placed on. A cap with the Mercedes symbol is recognizable to a Mercedes customer or fan as a car with the same emblem.

Elements of a website can receive trademark registration. They must be a source identifier and help distinguish your website from others. Not all website features or components may be eligible for trademark protection. Common design elements or functional aspects essential for all website operations may not qualify for trademark protection.

Copyright protection is more applicable for the protection of the layout or structure of a website. U.S. Copyright Office handles copyright registration.

'Trade Dress" Protection for Web Pages

Web pages fall more readily under the concept of "trade dress." This concept refers to a product's physical appearance, including its:

• Size

• Shape

• Texture

• Color(s)

• Graphics

A few courts have issued injunctions — a command from a court to stop certain conduct — against websites. This happens when it looks like another well-known website. So much so that it confuses people over who maintains the site.

The U.S. Supreme Court established a three-prong standard that a person wishing to protect specific trade dress must prove to win in court.

• The trade dress must be distinctive. It can be inherently distinctive or have acquired distinctiveness (secondary meaning) over time through public recognition.

• The trade dress must be non-functional.

• The trade dress of the Defendant (person being sued) must be likely to confuse someone about the source of the product or service ("likelihood of confusion")

Distinctive Trade Dress

Whether a website is inherently distinctive is a judgment call. Most website designers are shooting for a unique look. This can make it difficult for any site to stand out. This will be of less concern for popular websites. They may get distinctiveness, that is, public recognition through their popularity. Many might immediately recognize the Yahoo, Google, or eBay home pages.

Non-Functional Trade Dress

The rule that trade dress must not be functional looks at its impact on the competition. Trademark law helps to prevent unfair competition by stopping manufacturers from stealing customers by using their competitors' marks. But the competitors still have a right to compete in the marketplace. If companies could secure exclusive rights in functional aspects of products, this would close others out of the market by preventing them from making the product.

The functional aspect for an airplane manufacturer securing trademark protection is airplane wings. There are different ways to make airplane parts that would not limit competitors. Yet with web pages, the functional aspect is a little different. It is hyperlinked. The owner of a website cannot guarantee trade dress protection in hyperlinks. That means they cannot prevent others from featuring them on their websites.

Likelihood of Confusion

Public confusion is the final issue a court looks at in website trademark infringement cases. The court looks at the two sites. If evidence shows it could confuse the public looking at the two sites, then the Plaintiff (company suing) wins. This is the likelihood of confusion test.

Websites still need to secure definite trade dress protection. The means for seeking such protection are available under trademark. There is also a possibility for copyright protection of the content but not the actual website. Courts are beginning to recognize infringement claims in this area.

How to Register Your Trademark

You must file a trademark application with the United States Patent and Trademark Office (USPTO). This is how to register a trademark. Before registering your trademark, you must complete a trademark search on the USPTO's trademark electronic search system. TEAS Plus is an electronic filing option provided by the U.S. Patent and Trademark Office. TEAS Plus streamlines the application process and offers a lower filing fee than other options. Applicants can check the status of their trademark applications on the Trademark Status and Document Retrieval (TSDR).

Once you have a registered trademark, you should display the registered trademark symbol on your website. The federal trademark symbol is "R" inside a circle symbol (®). You have common law rights in the United States once you use the trademarked part in your business. If your mark is still going through the registration process but you want it seen as a trademark, you use the "TM" symbol (™).

What Happens if Someone Infringes on Your Trademark?

You may have a trademark infringement claim if someone uses your registered trademark without your permission or license. If you believe someone has infringed on your mark, you can take legal action to enforce your rights. You may take legal action by sending a cease and desist letter, seeking an injunction, or initiating litigation with a lawsuit.

Need Legal Advice? Consider Meeting with a Trademark Attorney

If you need clarification about the finer points of trademark rights and intellectual property law, please speak with an attorney. How the application process works and website trade dress is complex. It may also keep your business protected. Find a trademark law attorney near you for a consultation.