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Saturday, September 28 • 3:10pm - 3:45pm
Trade Dress 2.0: Trademark Protects in Web Design What Copyright Does Not

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This comment argues that businesses should use trade dress to protect the web design of their websites. Currently, protections exist under copyright, however, the limited right of copyright is not broad enough to protect all elements of web design. Trade dress would provide broader protections because it is based on a generalized likelihood of confusion analysis. Additionally, rather than the creative basis of copyright, the commercial underpinnings of trademark law are more effective to protect the value of the website, which is the user interface. Practically, the copyright infringement analysis does not provide the full protections that a trade dress “likelihood of confusion analysis” would provide. Courts should use trade dress analysis because: 1) web designers need to protect the user interface of their programs, which mirrors the aims of trademark to protect the relationship of the consumer to the business; 2) the legal analysis for finding trade dress infringement protects the composition of the web design over the individual elements, which is the reverse of the copyright infringement analysis for software; and 3) the functional elements of trade dress are not automatically removed from the confusion analysis, which is the reverse of the copyright infringement analysis.

avatar for Gregory Melus

Gregory Melus

Juris Doctor, American University, Washington College of Law

Saturday September 28, 2013 3:10pm - 3:45pm PDT
GMUSL Room 332

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