Kayak Makes Waves Over Bing’s Design Similarities

Microsoft is the target of yet another legal challenge — this time from the online travel Web site Kayak, which has sent the software giant a letter noting similarities between its own site and Bing’s travel service. It has asked Microsoft to take steps to address the matter.

“Our concern is about confusion from consumers and suppliers,” Kayak Chief Marketing Officer Robert Birge told the E-Commerce Times. “We want to make sure that people realize the products are distinct and unrelated.”

Kayak has offered to meet in person with Microsoft over the matter, and “we have decided to see how things work out before we comment further,” Birge said.

Microsoft, for its part, reportedly has denied any deliberate intent to copy the Kayak site.

A side-by-side comparison of the two does indeed suggest similarities in both functionality and design; but then the same could be said of any other travel service Web site. By necessity, these services must offer consumers choices of destinations and departure cities, dates, related products and services from partner suppliers, and so on. There are only so many permutations in design that can be employed to achieve the same ends.

A Little Wiggle Room

That said, copyright law does offer Kayak room to make its case — but only a little room, according to Chris Collins, an attorney with Vanderpool, Frostick & Nishanian.

“Copyright protects the expression of an idea — not the idea itself,” Collins told the E-Commerce Times. “There are certain elements that are common in travel sites — and copyright law does not allow the first company that used a reservation button to prevent everyone else behind it from using something similar.”

What it does do is bar a newcomer to the field from using, say, a red light to cancel a reservation — or from lifting any icon that is arguably specific to a competitor’s existing Web site, he said.

There is some subjectivity involved, Collins acknowledged. “These cases come down to definite fact patterns. At what point is it determined that a company has directly lifted out similar functionality, or similar look and feel?”

The cases also hinge on proving intent, which could be hard for Kayak to establish.

“It would be very odd if there were smoking guns that pointed to a deliberate copying of Kayak’s site,” Collins said.

Another factor to consider: Many travel Web sites are losing money now, Collins pointed out, and a splashy dispute could be a way for a site to generate interest.

More Different Than Similar

It’s unlikely that Microsoft deliberately lifted Kayak’s intellectual property, said Raymond Van Dyke, a partner with Merchant & Gould.

There are apparent similarities between the Kayak and Bing travel sites, particularly with respect to the overall layout and use of sliders, he acknowledged.

“Although there are some similarities, the underlying code differs, functional aspects differ, and Bing includes additional powerful features — such as predictive price — not present in the Kayak engine,” Van Dyke told the E-Commerce Times.

“With the recent advances in travel site search engine capabilities, it is likely that any structural and functional similarities are entirely by happenstance, as opposed to copying,” he commented.

Other steps Kayak would have to take to hold sway in this dispute include obtaining rights to the visual appearance of its Web site under trademark and trade dress law, Van Dyke said.

It also would be necessary to establish that the Kayak search engine had independently garnered distinctiveness in the market, he continued, and that there was an actual likelihood of confusion between the two sites.

Under copyright law, even if substantial similarities exist, independent creation is a defense to a charge of copyright infringement, Van Dyke emphasized.

It’s unlikely that the issue Kayak raised will mature into litigation, he said.