In addition, unfair competition laws (federal and state governments) often apply if you have trade dress that is not registered. Under federal law, the owner of an exclusive trade dress can make a dilution claim by proving that the trade dress claimed is infunctional and famous, and that any unregistered item is famous, regardless of the reputation of the trademarks, if any. the mere refinement of a commonly accepted form of ornamentation known for a particular category of goods that is considered by the public to be dress or ornament for the goods; It is also almost impossible to register patented ideas under trade dress, as utility models cover the functional aspects of a product. Another case before the Supreme Court involved the signage manufacturer Marketing Display. It argued that its design, which previously had a patent, could be protected by trade dress. A lower court ruled in its favour because the design had secondary meaning and was functional (as evidenced by the expired patent), but did not disadvantage its competitors. The Supreme Court overturned that decision, saying the design was essential to the use of the road sign. This made it functional, so it could not be protected by trade dress. (Traffix Devices v.
Marketing Displays, 121 S.Ct 1255 (2001).) There are other differences in the way arbitral awards are determined in cases of design infringement and trade dress. In a design case, you may also receive a reasonable licensing fee. This is especially advantageous in cases where the defendant has a low profit margin, sells the products at a loss, or gives them away for free. Most companies choose to register trade dress through the trademark process instead of a design. It doesn`t take that long and is usually cheaper. Elements must meet the criteria for protection, including distinctiveness and non-functionality. While the future of trade dress protection for websites is still very uncertain, a lot of thought has gone into this area, and it is likely that it will continue to actively develop the field for courts and litigants.   Another thing to consider is how courts decide in trade dress and design cases.
If the court decides that you have trade dress, you must prove that there is a likelihood of confusion in the marketplace. This is easier to achieve than what you have to prove in a design case – that an ordinary observer would consider the two designs to be essentially the same. While the exact limits of protection are still uncertain, the courts are beginning to allow trade dress protection for the entire look and feel of a website. In Blue Nile, Inc. v. Ice.com, Inc., the plaintiff sued the defendant for copying the general look and feel of the plaintiff`s jewelry retail websites, including the design of the plaintiff`s search pages.  Although the Court ordered a more objective development before it could make a final decision on the matter, the Court concluded that it was possible to place the appearance of websites under trade dress protection if the plaintiff`s copyright claims did not already cover these parts. In SG Services, Inc. v. God`s Girls, Inc., the court refused to protect the trade dress on the plaintiff`s website because the plaintiff had failed to prove that the website was unusable or distinctive.  This case demonstrates the Court`s willingness to consider trade dress protection for a website, although the Court did not find protection in this case.
It should be noted, however, that the SG Services Tribunal did not consider the general appearance of the website, but certain features (such as color) of the website that the plaintiff claimed were violated. What is considered “functional” depends on the specific product or thing to be protected.  For example, the red colour of a clothing line may not be functional (and therefore part of a protectable trade dress), whereas the same colour on a stop sign would be functional because the colour red has the function of alerting drivers (and therefore would not be part of a protectable trade dress).