Trade dress is packaging, design and shape of a product that serves to identify its origin. The look and feel of a website can potentially be protected as trade dress, at least with respect to technical aspects that are non-functional. Courts have found the following features non-functional and subject to protection as trade dress:
-script or font styles
-wallpaper color and pattern
-particular poses chosen for models
-manner in which goods or services are presented to prospective purchasers
At least one federal court noted that there may be a difference between a website marketing a product and a website that is the product itself. In a similar case, a federal court noted that there must be a “concrete” description of the look and feel – that a list of features is not sufficient to successfully sue for trade dress infringement.
The case in 2015 will be expanding and defining trade dress in the context of websites. This will be a changing area of law to be watched carefully next year.