Similarities between some web pages nowadays are not a rare sight. All resemblances though shouldn’t be put in the same category. Just as some of them are a result of a targeted imitation of a competitor’s website, others are similar by necessity, and those similarities can’t be overcome without significantly damaging the site’s functionality. Wherein lies the difference between both cases?
This issue was the focus of the Supreme Administrative Court’s (SAC) ruling from the beginning of this year, which confirmed a ruling of the Commission for Protection of Competition (CPC). The case is about two companies in the market for online reservation systems for bars, clubs, and restaurants. The alleged prohibited similarity ended up not being proven, and the similarities between the two websites were owed to functionality and by necessity due to the identical economic activity. How do the CPC and SAC detail the restriction of imitation and where do they draw out the distinction between allowed and forbidden resemblance?
More broadly, prohibited imitation, according to the law, can manifest itself either through the used domain, or through the outer appearance of the website. Such imitation can consist of identicalness or similarity and must be capable of misleading the consumer. Adding onto this, the identicalness or similarity must be identifiable without the help of specialized knowledge or skills. This condition is crucial, because potential visitors and consumers of websites are an unidentified and unrestricted sum and it can’t be expected of them to possess such knowledge or skills. In other words, the resemblance must be visible to the naked eye.
With reference to the outer appearance of the web page, the CPC clarifies that it encompasses its design, along with visual elements of the interface, photos or other types of images, as well as placement of buttons and text.
Similar functionality due to like in this case, identical economic activity carried out by both companies, inevitably reflects on core elements of the site. For example, in this legal dispute, such similarities would be the presence of bars to fill out the type of establishment, date and time of the preferred reservation, number of people, as well as options to separate establishments by category. There isn’t a focus on imitating a competitor’s website, and these minimal resemblances constitute necessary elements, characteristic of the particular field of economic activity. But if, let’s say, the above outlined bars with functional nature were portrayed in the same order and with the same design, then the outcome would likely be different.
Unlike these elements though, resemblances in the selected pictures for the web page, their general placement on the page along with different buttons and text (size, font, etc.), the general color palette of the site, would fall under the scope of the restriction. That is the case because the totality of these elements’ placement and their outer appearance does not in any way make up a necessary condition for the functioning of a competitive web page in this particular field of economic activity.
To sum up, similarities that are generated by the purely functional aspect of a website can’t be counted as a prohibited imitation of a competitor’s site. Only elements that contribute to the visual impact and don’t have any relation to the different functions being offered must be individualized by the respective merchant, so they don’t mislead the consumer about whether he’s stumbled upon the website of a competitor.
