On Tuesday, September 2, 2009, the mighty 1600 pound gorilla in the room, also known as Google, was granted a design patent on the look of its search webpage found at Google.com. Yes, the United States Patent and Trademark Office awarded Design Patent No. 599,372 to Google just days ago on an application that was filed on March 6, 2006, and which was a division of an earlier filed Design Patent application filed on March 26, 2004.
What this means for Google is less important than what it means for everyone else who has a website. If Google is allowed to protect its webpage through the acquisition of a design patent then everyone could and should seek to obtain a design patent on their webpage. Design patents had been thought to be tremendously weak and not worthwhile unless obtained in bulk, but all of that changed a little less than a year ago when the Federal Circuit issued its decision in the Egyptian Goddess case. The Federal Circuit changed the design patent infringement test from one that focused only on whether the accused infringer copied the novel aspects of the design to a test that looks at the totality of the design and the totality of the accused infringing product. That being the case, it is now much easier to prove design patent infringement and design patents should be in every patent portfolio. They are cheap to obtain, typically costing in the range of $3,000 from start to finish. Design patents can typically be obtained in 8 to 9 months now, and they are now formidable rights thanks to the Federal Circuit Egyptian Goddess ruling. Obtaining a design patent is an economical way to ward off competition and copyists. If you are a website designer or you design website templates or wordpress templates you really need to apply or a design patent on your new designs.
The design patent protection obtained by Google here certainly overlaps with other forms of intellectual property protection Google already owns. It would be a tremendous stretch of the imagination to believe that anyone starting a search engine would be allowed to copy or even nearly copy the design of the Google search page. If you were to design a search page that looked like Google’s page they would have been able to bring a federal complaint based on 15 U.S.C. 1125(a), which relates to the creation of consumer confusion. Under trademark law theories you can prevent others from engaging in activities that would likely lead to consumer confusion. You do not have to actually prove confusion, just that there is a potential for confusion, and it seems likely that anyone getting too close to Google would have been able to be stopped already.
Google may also have some trade dress protection as well, although trade dress protection gives the owner the ability to prevent others from getting to close to the so-called “look and feel” of what the owner of the unique trade dress is doing. Trade dress is the totality of elements in which a product or service is packaged or presented. These elements combine to create the whole visual image presented to customers and are capable of acquiring exclusive legal rights as a type of trademark or identifying symbol of origin. Because trade dress includes all factors making up the total image under which a product or service is presented to customers, it potentially covers almost all aspects of appearance. Things that have been held protectable under the category of trade dress include: (1) the shape and appearance of a product; (2) the shape and appearance of a container; (3) the cover of a book or magazine; (4) the layout and appearance of a business establishment such as a restaurant; (5) the theme and look of a line of greeting cards; and (6) the recognizable shape of an automobile.
With respect to the Google situation, an argument could be made that there is a lack of trade dress I suppose, given that the Google search page is the antithesis of cluttered. The Google search page being largely characterized by white space and wide open design might not lend itself to much, if any, trade dress protection.
Typically that which may be protected through trade dress and that which may be protected via patent are mutually exclusive because the United States Supreme Court has stated that trade dress cannot protect functional aspects. To the extent that there are functional aspects trade dress protection is inappropriate, and any protection provided must be the result of patent protection. This recognizes that the law awards patents for a limited time and if there is a functional aspect to what is being protected then it must fall into the public domain within a limited time. As with trademarks, trade dress can last forever, so there is little real overlap between trade dress and patents, or at least utility patents. Here where the design of the webpage is being protected the protection attaches to the look, not the function of the Google searching software.
This could usher in a new form of gold rush on the Internet, and if you have a unique design you really should consider getting in on the new, improved and worthwhile protection offered by a design patent.