Can Look And Feel Be Copyrighted? Options

[qwerty]

I'm looking over an RFP sent to me by the owner of a site that sells a particular product. As far as I can tell, the site, which is based in the UK, is not an official arm of the company that makes this product (which is global, but based in Germany).

I took a look at the company's main site and their US site, and they have a particular look and feel -- colors, navigation, a certain image used for bulleted lists -- and this is pretty much the same look as that of my prospective client.

I'm wondering if they need the manufacturer's permission to make their site look this way. To the uneducated, it may appear that the site, because of the way it looks, is officially connected to the manufacturer, and I wonder if that could get them in trouble.

[sweepthelegnate]

I've always thought that look and feel is copyrighted (or at least the elements that make up the particular look and feel) whether or not the elements are copyrightable depends...

here is what I turned up with a quick search:

http://www.ivanhoffman.com/feel.html

snippet:

Other than in an exact duplication of the sites, copyright infringement may also be found if the sites are “substantially similar.”  What this means is often subjective and the courts have developed a number of different legal “tests” to determine whether, in this instance, Site 2 is an infringement of Site 1.  These tests are often referred to as the “abstractions test,” the “subtractive test,” the “totality test,” the “intrinsic/extrinsic test,”  the “analytic dissection of similarities” test and the “abstraction-filtration-comparison” test. Without going into the details of each of these tests, suffice it to say they are methods for determining whether or not there is an infringement in a given instance.  In each instance, the purpose is to enable a court to decide if what was copied is sufficiently protectable under the copyright law to warrant sustaining a claim of infringement.

and of course as always everything on the web is true (IMG:http://www.highrankings.com/forum/style_emoticons/default/wacko.gif)



nathan

[qwerty]

Thanks. If that's true, I guess I have some questions for this prospect.

[Googlewhacked]

Hey qwerty,

While by no means definitive, you might want to check out http://www.pirated-sites.com/faqs/#copyright-issues. The whole goal of this site is dealing with this kind of thing.

Phil

[mcanerin]

Yes, look and feel can be copyrighted under certain circumstances (it has to be unique and have required original human creativity).

There is also a possible issue with trademark law, since it sounds like there may be a case for "confusingly similar". Depends on the case, of course.

Either way, if there is a legitimate possibility that a consumer could believe that a relationship exists based on the look and feel of the site, then they have issues if the manufacturer does.

Ian

[Haystack]

It seems like the manufacturer might have a problem with that, which could have a deleterious effect on your prospect's relationship with the manufacturer.

[jodo]

I'll take the counter argument.

Most would agree the manufacturer whose look and feel is being used could protest. But will they? And if they do so what? All that need be done is a redesign. No hard feelings.

A strong argument can be made that both parties benefit from a consistent and harmonic brand reinforcing design. Think of it as a vendor made store display.

Of course I'm not suggesting your client would not be better off in the long run with their own design. But for now...How strong are their sales and profits? Would changing the look of the site improve it or just change it?

[sweepthelegnate]

Think of it as a vendor made store display.

good point.


I think it will just come down to the manufacturer's policy on the matter. some like it, some don't, but in my experience with such things, either way they probably have some sort of policy.


nathan

[Googlewhacked]

All that need be done is a redesign.

And what of all of the additional cost involved in doing so (time & money)? If a little research is done beforehand, the company can save that expense for other, more beneficial projects.

While it is true that the "original" company (the one being emulated) may not take any action, they could just as easily file a copyright infringement suit. I guess this is a judgement call, but I (for one) am not much of a gambler...

[lyn]

Why not just ask the manufacturer?

From the sounds of it, the original site would probably endorse a use that promotes its product. The logo cops might have some design requests to keep teh new site within branding guidelines but that's better than a lawsuit!

If they do object, your client might as well find out up front. The secret is blown as soon as the site is posted, and it's generally good practice to stay on the bright side of a supplier anyway.

No point being bashful about it - just bang on the front door!

L.

[qwerty]

But the prospect's site is already there, and I don't think it's the best way to build a relationship with a new client to narc on them :tooth:

I wrote to the prospect to ask if they have the company's permission, but 'tis the season to sit and wait for people to get back to you. They may not be back in their office until after the first.

[lyn]

Bob, I'd just go ahead with responding to the RFP as if everything is on the up & up. If your client has a legitimate affiliation with the manufacturer, even if it's no more than a being an independent dealer/distributor, I doubt that the manufacturer would make much of a fuss; maybe some whining from the branding cops. If the site's were anywhere near being competitors, I'd tread carefully. In this case, though, everybody's trying to stream revenue into the same pockets so they should be able to play nicely.

You can always raise the issue as a detail once you have the work in hand. If your client doesn't already recognize the potential for liability, just help them look after their own best interests by getting everything clear with the supplier. Like I said, this can hardly be done in secret! If they are doing anything wrong, they are going to get caught so there's nothing to lose by approaching the supplier first. More likely, there won't be a problem at all.

L.

[orvado]

Is your client an "affiliate" or "registered" reseller of the main company? If so they may want to check their "affiliate" contract as to what the parent company sets as the standard.

Some companies that I have know appreciate their "affiliates" having similar websites as it improves the overall branding.

[qwerty]

Welcome, orvado (IMG:http://www.highrankings.com/forum/style_emoticons/default/bye1.gif)

I don't know if he's an affiliate or not. I'm still waiting to hear back from him on whether he can assure me that his design is ok with the company. I guess that if he is an affiliate, they're well aware of him and how he's designed his site.