Dyan Finguerra-DuCharme is counsel in the intellectual property litigation practice group of WilmerHale. WilmerHale has over 1,000 attorneys in 11 offices in the U.S., Europe and Asia. Its specialties include intellectual property, regulatory issues and appellate law.
This article originally appeared in GC New York, a publication aimed at corporate general counsel.
Customer impressions of a company are increasingly shaped by the company's Web site. Ads, special offers or word of mouth may bring people to a site, but if the design is not appealing, and shopping, finding information and asking questions are frustrating, they may never come back. It's no wonder, then, that a competitor might seek to mimic a successful company's Web site.
Dyan Finguerra-DuCharme, an intellectual property attorney at WilmerHale, says that lawsuits alleging unfair copying of a Web site's look and feel are on the rise because "the Web site itself has become a valuable piece of intellectual property worth protecting." The first thing any company with a Web site it feels is worth protecting should do, she says, is register it with the U.S. Copyright Office. Doing so improves the odds of prevailing in court and stiffens potential penalties against the defendant.
However, Finguerra-DuCharme warns that winning an infringement case can be extremely difficult because of the tough legal standards for proving that a site has been copied. "Generally, it seems that only if one site is a very clear imitation of the other will a court find infringement," she writes. Further, the legal concept of Web sites as protected intellectual property is still evolving, and even decided cases are far from settled law. In an article aimed at lawyers faced with infringement complaints from clients -- but useful to anyone with a commercial Web site -- Finguerra-DuCharme describes the emerging legal terrain by examining rulings in recent cases.