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Copying Website's 'Look and Feel' May Amount to Trade Dress Infringement

Thursday, August 29, 2013
By David McAuley

Allegations that a commercial website copied the stylistic choices of the plaintiff's widely recognized website were sufficient to state a claim of trade dress infringement, the U.S. District Court for the Eastern District of Louisiana ruled Aug. 23 (Express Lien Inc. v. Nat'l Ass'n of Credit Mgmt. Inc., E.D. La., No. 2:13-cv-03323-LMA-DEK, 8/23/13).

A claim pursuant to the Lanham Act, 15 U.S.C. § 1125(a), can be brought to protect a website's appearance, or trade dress, without the need for a registered trademark, Judge Lance M. Africk said, citing Healthpoint Ltd. v. River's Edge Pharmaceuticals LLC, No. 03-984 (W.D. Tex. Feb. 14, 2005).

The court said that a viable trade dress action had been alleged because the plaintiff claimed that the defendant copied stylistic choices such as the color, font, and hyperlinks of the plaintiff's distinctive and well-recognized webpage. 

Similarities Between Websites Alleged

The plaintiff in this case, Express Lien Inc., known as Zlien, offers online legal self-help forms to entities in the construction industry nationwide, including state-by-state information. The defendant, the National Association of Credit Management Inc., offers similar services.

NACM moved to dismiss the trade dress claim on the grounds that Zlien failed to allege that it had a valid trademark.

In the Fifth Circuit, a two-step analysis is used to determine whether trade dress infringement under the Lanham Act has taken place, Allied Marketing Group Inc. v. CDL Marketing Inc., 878 F.2d 806, 813, 11 U.S.P.Q.2d 1605, (5th Cir. 1989). First, a court looks to three factors, (1) distinctiveness, (2) secondary meaning, and (3) functionality, to ensure that the trade dress is nonfunctional and has either acquired a secondary meaning or is sufficiently distinctive.

Second, if qualifying trade dress status exists, a court must examine whether the trade dress was infringed by a demonstration of substantial similarity likely to confuse consumers.

Here, the court said, Zlien alleged that NACM copied a number of its stylistic characteristics along with some of the content in a manner that could lead to a confusing similarity. These allegations raise factual issues that cannot be resolved in the context of a motion to dismiss, the court said. “The fact that the NACM webpage … has several differences from a corresponding Zlien webpage does not show that Zlien has failed to state a claim upon which relief can be granted.”

Sean P. Sullivan and Seth Joseph Smiley, of the Wolfe Law Group LLC, New Orleans, and Nathan L. Budde, of Zlien, New Orleans, represented Zlien. Jamie L. Berger and Michael A. Balascio, of Barrasso, Usdin, Kupperman, Freeman & Sarver LLC, New Orleans, represented NACM.

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