Is a Website Design protectable “trade dress”?

A recent case oput of California is one of the first cases in which a court has concluded that the “look and feel” of a website is protectable trade dress, even when the website is used to market a product and is not the product itself.  A Trade Dress claim typically protects the “look and feel” of a product which has included packaging, design and shape of the product itself.  The United States District Court for the Northern District of California, in Ingrid & Isabel, LLC v. Baby Be Mine, LLC, may have adopted a new approach to trade dress protection for websites.

Ingrid & Isabel, LLC (I&I) and Baby Be Mine Maternity, LLC (Baby Be Mine) both sell belly bands, a cloth band worn around a pregnant woman’s waist to hold up clothes that no longer fit because of the pregnancy. Belly bands are also considered functional for decorative purposes. I&I markets its products under the “Belly Band” trademark and Baby Be Mine markets its products under the “Bella Band” trademark.  I&I claims that Bella Band is confusingly similar to Belly Band.  I&I also claimed that Baby Be Mine copied the “look and fee;” of its website.

The court held that “the look and feel” of a website can constitute protectable trade dress under the Lanham Act. As applied to the I&I website, the “look and feel” had potentially acquired secondary meaning because the deliberate copying of the “look and feel,” as Baby Be Mine had arguably undertaken in this case, can buttress an inference of secondary meaning. The “look and feel” also contained sufficient non-functional elements so as to raise triable issues of fact. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (noting that trade dress design protection only extends to aspects that are non-functional).  Those likely non-functional elements of the website included: the use of feminine script, the particular poses chosen for its models, and the color and pattern of the wallpaper. Finally, the “look and feel” of I&I’s site could engender a likelihood of confusion when compared to Baby Be Mine’s site insofar as Baby Be Mine intentionally copied I&I’s site, and there existed (expectedly) substantial similarity between the two sites, as illustrated by screenshots entered into evidence. Therefore, the likelihood of confusion element constituted a triable issue of fact. See also Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352 (9th Cir. 1985) (courts are disinclined to decide trademark cases at summary judgment because the ultimate issue is so intrinsically factual).

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, — F. Supp. 3d —-, 2014 WL 4954656 (N.D. Cal. 2014).

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