The intersection between trade dress law and copyright law must be understood when seeking trade dress protection for elements that may fall within the subject matter of copyright. The technological elements that create the look and feel of a website may include both trade dress elements and copyrightable works. Website owners are beginning to rely on the protections of trade dress law instead of or in addition to copyright law when the look and feel of a website is imitated by a competitor. Asserting trade dress protection for website look and feel requires careful pleading and will provoke a variety of defenses, including copyright preemption. This paper will discuss the identification and selection of trade dress elements in order to satisfy the trade dress requirements and survive a challenge based on copyright preemption.
J. Scott Anderson, Painstaking Semantics: Selecting Website Trade Dress Elements To Survive a Copyright Preemption Challenge, 7 J. Marshall Rev. Intell. Prop. L. 97 (2007)