Is using a Facebook like theme for my website would be legal or not? 6 Answers as of April 28, 2013

I’m creating a social media website for a target market of people. The platform I’m using is ELGG.

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Gerald Walsh | Gerald Walsh
You might infringe someone else's copyright, trademark, or trade dress rights by using a Facebook like theme. You would need to do some research on your theme to determine whether it might infringe existing website or related themes.
Answer Applies to: Alabama
Replied: 4/28/2013
Gerald R. Black, Esq.
Gerald R. Black, Esq. | Gerald R. Black
Facebook currently has 86 U.S. Patents assigned to them. They may own more. Go the U.S. The patent Office search engine of issuing patents at http://patft.uspto.gov/netahtml/PTO/search-adv.htm. If you enter ?A/Facebook? In the search window, and press the ?Search? Prompt, you will see the titles of all of these 86 Patents. Generally, attorneys charge tens of thousands of dollars to provide a clearance opinion. To answer your original question, I believe that it is beyond the purview of this forum to do the necessary research to provide you with this type of information. Suffice it to say that Facebook is worth billions of dollars and protects their intellectual property. Even if you were right, this would be a difficult battle to win. If you want to persist, you will need to seek the advice of counsel, after you have reviewed Facebook's patent portfolio. I hope that this helps and good luck, my friend!
Answer Applies to: Michigan
Replied: 4/19/2013
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
As is often the case with legal issues, is: "it depends". Facebook's theme is a combination of trademark and trade dress that gives Facebook a distinctive and easily recognizable look and feel that users associate with Facebook. The issue here is how similar is your theme to the Facebook theme? Is it so similar that it would confuse the consuming public or in this case, Facebook customers, into thinking that your website is associated with, or owned by Facebook, when in fact it is not? If the answer is yes, you have a trademark and/or trade dress and/or unfair competition action headed your way and you will likely lose because Facebook is the senior user. Trademark, trade dress and unfair competition laws are designed to protect the legitimate intellectual property rights of the owners of trademarks and trade dress. If you are trying to make your website look so similar that Facebook's customers will confuse your website with the legitimate Facebook website, the law is weighted against you succeeding. Obviously, this is a very factually driven analysis and without a side-by-side comparison of your theme and that of Facebook there can be be no legal conclusions rendered. So, if you intend to move forward with a theme that is close to what Facebook owns, you would be well advised to seek the advice of counsel before proceeding, if at all.
Answer Applies to: Utah
Replied: 4/18/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
ELGG is an open source networking platform. Facebook and many other social web sites have similar "themes". As long as you don't copy the theme and the flow of the website you should be fine. You might want to make improvements that makes your website superior. The more differences you create the better chance that another company won't thing you website is a copy.
Answer Applies to: California
Replied: 4/17/2013
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Your question does not contain specific details to permit me to fully answer. However, if you use a "Facebook-like theme" you could be accused by Facebook of violating copyright, trade dress and trademark law. Further, there are many patents that cover the operation of social media web-sites. Your biggest problem here could be patent infringement. Anyone who attempts to create a social media web-site must retain intellectual property counsel to conduct a "clearance analysis", which involves determining whether the proposed web-site would violate patent, copyright, trademark law, trade dress law and perhaps others. Further, there are numerous other legal requirements that must be met. For example, the web-site must set up a DMCA agent for handling of take-down notices under the Digital Millennium Copyright Act. The web-site must comply with state and federal privacy laws, and those of any other countries in which it operates. The web-site must comply with laws designed to protect young children such as COPPA. There are probably dozens of other such requirements. I regularly represent clients in the social media/web-site space, and I can tell you from experience that such a web-site cannot be safely and properly operated on a shoestring budget. You absolutely must have an adequate budget to lay the proper legal foundation for your web-site. This will cost a minimum of $20,000 and depending on the details concerning what you expect to do, it might cost a lot more. Some companies spend more than $100,000 just for a patent clearance analysis (which is often critical for companies who want to operate in the social media space). You are contemplating going into competition with the big boys, and you need to be ready to do so. When and if you are serious about moving forward with this project, I am available to assist you (assuming we have no conflicts of interest).
Answer Applies to: New York
Replied: 4/17/2013
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