Jonathan Hudis, chairman of the American Intellectual Property Association, discusses stepping over the fine line of trademark infringement in Web site design.
Last year the Walt Disney Co. paid more than $21 million to settle a traffic dispute. Or rather, a traffic-signal dispute. The company settled a claim brought by GoTo.com, which had been using a green-light logo before Disney put a similar design on its Go.com Web site. GoTo.com filed suit in the beginning of 1999, claiming that the effect was likely to "confuse consumers into thinking that the two Web sites were from the same company," says J. Dianne Brinson, coauthor of Internet Law and Business Handbook. "That's trademark infringement."
Indeed, trademark laws protect logos and other colors, shapes, and fonts associated with specific companies, even in digital form. But when you're talking about the design of a company's Web page -- the general look and feel of it -- the legal territory gets a bit murkier. "Right now the law is very unsettled regarding what you can copy from another person's Web site and what you cannot," says Jonathan Hudis, chairman of the American Intellectual Property Law Association's Internet and cyberspace committee. That's because the basic elements of smart Web design -- like navigation bars, shopping carts, and fill-in forms -- are fair game. They're considered "ideas," and you can't copyright an idea. "It's like the on/off button on a VCR," Hudis says. "It's a utilitarian object."
But copyright law does protect the original creative expression of ideas. So while you can, and should, put a navigation bar on your site, you can't lift the happy blue navigation monorail that scrolls across www.Disney.com. You can't copy the code, nor can you re-create it from scratch, because that little monorail design is Disney's creative property.
Exactly where is the line between free-for-all function and hands-off form? After all, Amazon.com scored a patent for its "1-Click" ordering process -- arguably a tool. Experts say there really is no line. If you still want to copy something off the Web, Hudis's advice is no surprise: before doing anything, check with your intellectual-property counsel.