The Graphical User Interface of a computer program is the first contact between the user and the program and establishes the first impression and interaction between the user and the software, thus becoming a critical aspect of software development.

A well-designed GUI possesses a competitive advantage and therefore constitutes a valuable intellectual property asset to be protected.

Usually, protecting the "look and feel" of a GUI is automatically associated with copyright law. However, this is not the only protection available - "trade dress" establishes another - and probably better-suited - method of protecting the overall "look and feel" of a GUI.

Copyright protection recognizes a property right in an author's creative work, while at the same time furthers the public's free access to information by limiting the scope of what subject matter is protected by copyright.

Copyright law (whether international or local) protects, by definition, original works of authorship fixed in any tangible medium of expression. Furthermore, copyright law only protects the expression of the idea from being copied without permission and not the idea itself.

Anyone can freely express an idea or concept in a different manner, even if the idea is identical to another author's idea. This language creates several obstacles, making copyright law difficult to implement on matters of computer GUI's.

First, the language requires that the GUI will be original. This requirement may be satisfied if the GUI presents new and original features or creatively modifies and selects existing components (like menus, icons, pop-up windows etc.). A second obstacle is the requirement for fixation in a tangible form. The GUI may not be considered fixed, because the screens and windows are constantly changing.

This obstacle may be even more problematic when considering web-based interfaces written in server-side scripts, which usually retrieve data from ever changing databases.

The GUI as a whole, which includes the visual screen display and command hierarchy, could be considered just a method for operating the computer. Unfortunately, the Copyright Act expressly states that methods of operation are totally excluded from copyright protection. In one case (Lotus Development Corp. V. Borland International Inc.) the court analogized the GUI to a set of buttons on a VCR, concluding that the interface was merely a method of operating and as such not entitled to copyright protection.

Although it may be reasoned from the foregoing that copyright law is unsuccessful in providing the necessary protection for the overall "look and feel" of a GUI, nonetheless, copyright law may provide adequate protection for specific individual elements of the GUI, such as icons and graphic design.

Unlike copyright, which focuses on the balance of the author's right to protect his work of authorship and the public's rights to gain access to the creation, trade dress theory, which derives from trademark law, is aimed at protecting the public from being confused about the source of a particular product.

Consumers generally assume that products or services from a single source remain consistent, so trademarks enable consumers to rely on their previous buying experiences when making new purchasing decisions among competing products and services. If a consumer is confused about the source or sponsorship of a product, that consumer might make a poorly informed buying decision.

Trademark law attempts to encourage businesses to invest in the goodwill generated by their image, reputation and products. If this goodwill can be linked to a specific trademark and protected from consumer confusion under the law, then businesses will also be encouraged to make products of a consistent quality, which clearly benefits the public.

Copyright law looks at the similarity between two types of expression, while trademark law focuses on the likelihood of consumer confusion. While there may not be an infringement of rights under copyright law, due to a lack of substantial similarity between GUIs, there may still be an infringement under trademark law. That's because trademark infringement is based on a different rationale - preventing consumer confusion. Fortunately, this is helpful in "look and feel" cases relevant to GUIs.

In order to obtain trade dress protection the interface must meet three requirements:

• the GUI must be distinctive or to acquire secondary meaning.
• there must be a likelihood of confusion with the competitor's interface
• the trade dress must be non-functional

Distinctiveness is obtained when GUI clearly identifies the source of the GUI. This can be shown through either inherent distinctiveness or acquired distinctiveness. Inherent distinctiveness exists when the GUI is unusual or unique within its field and creates a distinctive visual impression. Acquired distinctiveness is found when due to exposure the relevant consumers link a certain design to a specific source.

The greatest threat to establishing the distinctiveness is interface standardization, which may result from either a particularly well designed GUI or due to the user's need to reduce the learning curve to new computer programs.

A likelihood of confusion must be proven in order to establish a trade dress infringement claim. A likelihood exists when an appreciable number of ordinary prudent consumers are likely to be misled or indeed simply confused as to the source of the computer program in question.

There are several ways that a likelihood of trade dress confusion may arise, such as simple confusion, sponsorship confusion, association confusion or reverse confusion. The common ground of all types of confusion is that the potential customer makes a purchasing decision based on false information, mistakenly associating a computer program to a different origin.

The design of a GUI is considered "functional" when the benefits gained by a particular design could not be easily duplicated by simply using another design. "Functionality" in this sense states that the GUI will not be protected by trademark law when the public and private interest of avoiding consumer confusion is outweighed by anti-competitive consequences of trademark protection.

If there is a need for competitors to use the functionality of a GUI to effectively compete, the GUI will not be protected. Functionality, essentially, presents the greatest obstacle to trade dress protection, mainly due to the fact that arguably computer programs are completely functional or utilitarian as they cause an operation to occur.

Protecting a computer interface as valuable intellectual property asset may seem difficult, but it is a necessary consequence of the computer age. It is clear that while copyright law fails to provide an adequate protection to the overall "look and feel" of a GUI, it adequately protects individual elements of the GUI such as icons or pop-up windows.

It is possible that trade dress will be a more successful means by which to protect the overall design or "look and feel" of a GUI. Distinctiveness may be difficult to prove under a trade dress theory, but the development of more advanced interfaces will enable the creation of more distinctive GUI's.

Furthermore, trademark functionality is not utilitarian based, as in copyright law. Hence, a GUI may still gain protection even with some utilitarian elements included in the layout.

The trade dress theory of protecting the total scheme or layout that identifies and distinguishes a specific source in the marketplace seems a more fitting theory for protecting GUI's.

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