As a business owner, your website is likely your window to the world. Whether you are directly selling products through it or merely advertising your services there, your website is perhaps the most critical aspect of your brand. You want to ensure that your website is attractive, usable, and distinctive—that is, that it looks different from competitors' sites.
But what happens when you notice that a competitors' website looks eerily similar to yours? In this situation, your customers might become confused between the two companies, and you risk losing business. What elements of your website can be protected through intellectual property law?
Trademarks are one of the most obvious elements of intellectual property to control on your website. Trademarks can be any word, symbol, logo, or image that distinguishes and identifies your company in the marketplace. The name "Starbucks" for coffee, as well as its well-known image of a long-haired mermaid, are instant signifiers of the coffee chain. Ditto for the stylized Amazon logo with its fast-moving arrow.
You likely have several trademarks on your website. Most obviously, the name of your business is a trademark. So is any logo that describes your business, such as a cartoon or stylized letters with your company's initials.
If a business uses a trademark in commerce—in other words, to sell its products and services—it has certain common law trademark rights. That means it can sue infringers that attempt to use those trademarks for their own purposes. Instances of infringement can result in unfair competition lawsuits in state court. You need not have formally registered the trademark.
If you are doing business online, however, you will be more heavily protected if you apply for and receive federal trademark registration. Registration with the U.S. Patent and Trademark Office (USPTO) is almost always the "best practice" when you have a website. Registration allows you to enforce your trademark nationally, which is critical given that online competitors (and potential infringers) could be based literally anywhere.
Registration with the USPTO does require a bit of an investment, typically a fee of a few hundred dollars per trademark (depending on various factors, such as the classes in which you intend to register the mark). Learn more about the process for registering your trademark. Fortunately, you can likely register your marks without needing to hire a lawyer.
Also pay attention to your URL. If a competitor attempts to purchase a URL that has words similar to your business name, this too can result in consumer confusion and thus be deemed trademark infringement. In an abundance of caution, you can even register your businsess's URL as a trademark, particularly if it is distinctive.
Once you have a registered trademark on your business name, logo and URL, you can legally prevent competitor from "stealing" those elements of your website and adding them to their own websites. This is among the most critical ways in which to ensure that your website remains secure.
Learn more about trademarks.
Copyright protects any original text or images, giving the creator certain exclusive rights over those creations, such as the exclusive right to reproduce them. Copyright is governed by the Copyright Act of 1976.
This is particularly important for websites, since chances are you have written a great deal of text for different pages of your site. The Copyright Act absolutely protects these sorts of writings.
Imagine that you own an organic soap company. Part of your website includes a "Mission" page, in which you describe your vision for organic soap—why you believe its better for your body and the environment, how this came to be your passion, and the ways in which you produce your soap. Now imagine that another organic soap company, which has a relatively similar product and mission, copies and pastes your "Mission" page for its own website. This would be a clearcut case of copyright infringement.
Learn more about copyright.
Unfortunately, not everything you might place on your website is protectable. The truth is, many websites look pretty similar to one another.
For example, many websites have navigation bars on the top, left, or right. Many websites have headers or footers with similar information (such as addresses and phone numbers). Many websites choose the same fonts as others have.
Even more specifically, many websites within particular industries or niches tend to include similar materials. Take a look at websites for car companies, law schools, and restaurants; you will quickly see many similarities in terms of the information described, the language used, and the ways in which the information is presented to visitors.
There are many reasons for this sameness. At a basic level, customers for each of these product categories tend to want the same information. Moreover, there tend to be a fixed number of Web designers and popular templates in existence for each product category. It's not unlikely that entrepreneurs working in the space spaces will find the same designers and templates, even if they do not "intend" to infringe on their competitors.
In short, not everything about your website is proprietary and subject to your exclusive control. Rather than worrying that a competitor's website looks similar, your time might be better spent ensuring that your own website looks distinctive from others in the marketplace.
What should you do if you see a competitor's website that appears to take elements of your site, such as trademarked or copyrighted materials?
First, see if you can reach out to the proprietor yourself. It is possible that they engaged in the infringement in error, or simply did not anticipate that you would ever notice or care.
Some people genuinely believe that any material on the Internet is "up for grabs," even though that's clearly not the law. More often than not, a simple email between business owners can resolve the dispute, and the infringer will correct the error.
Second, if this email goes unanswered, you might wish to hire an intellectual property attorney to send a cease-and-desist letter to the infringing party demanding that it remove the materials. A cease-and-desist letter typically describes the instances of infringement with some detail, and cites the relevant laws being broken and potential penalties. Such a letter tends to get the attention of the infringing business.
Finally, if the email and letter fail, you might want your attorney to actually initiate a lawsuit. You should consult with your attorney about the cost-benefit proposition for such an action, as you would not want to spend more in legal fees than you are actually losing through this competitor's infringement.
Additionally, your attorney can notify the Web host used by the competitor, as well as other search engines, to advise them of the infringement so that they can take independent action against the competitor.
