Competitor That Copied Website Design and Content May Be Liable For Infringement

It is a phenomenon that plagues businesses in every industry -- the competitor that copies the company's website. A federal court recently held that one such company accused of website copying may be liable for copyright and trade dress infringement. Plaintiff runs an online service providing information about liens and other issues relevant to the construction industry. Its website is comprised of selected state statutes and interspersed FAQs. The site has a certain color scheme, orientation and overall design. Defendant allegedly copied the text verbatim and mimicked plaintiff's website design. Plaintiff sued for copyright and trade dress infringement. Defendant moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (failure to state a claim). The court denied the motion.

Defendant argued that plaintiff could not, as a matter of law, claim copyright in the state statutes included on its site. But the court observed that plaintiff's copyright claim pertained to the compilation of certain selected statutes, as well as the FAQs. Under the Copyright Act, protection may extend to a compilation (i.e., a creative selection and arrangement of elements), even if the material of which it is composed is not copyrightable itself or is already subject to a previous copyright. So defendant failed to show as a matter of law that there was no copyright infringement.

On the trade dress question, the court rejected defendant's assertion that plaintiff's claim failed because plaintiff had no registered trademark. The court observed that trade dress protection is independent of having trademark rights, though both causes of action (trade dress and trademark infringement) require a showing of likelihood of confusion. Plaintiff's allegations that defendant copied its stylistic choices along with the content of the website, including the color, font, and hyperlinks, in a manner that was confusingly similar to plaintiff's website, were enough to survive the motion to dismiss.

Express Lien Inc. v. National Ass'n of Credit Management Inc., 2013 WL 4517944 (E.D.La. August 23, 2013)