Can I Trademark the Appearance of My Website?

I think what you mean is "can I copyright my website content," and the answer is yes, if it's protectible expression. Trademarks, on the other hand, denote the source of goods or products. So the answer to your questions are no, no, probably not, and not sure what you mean by "what is the illegal action that can be taken."

Your website content may both qualify for copyright protection, and it may contain a trademarkable mark. But you cannot 'trademark the appearance of your website" - the template you refer to is probably not protectible by copyright because it's "common property" that contains no original authorship.

Please see the USPTO and U.S. Copright Office links below, and my legal guide on "Copyright Registration - 3 Methods," for more information.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

"Trade dress" protects the distinctive look and feel of a product -- either its "packaging" or its "design." Although websites are not products some can quite literally embody the "services" offered by the website owner. Ebay.com and Amazon.com jump to mind but there are many, many others. So long as "website trade dress" is distinctive, there is no doctrinal reason why it should not be protectable (i.e., exclusive to the website owner).

This is not a wholly novel concept and there are a number of trial court cases that have addressed the issue. A good read on the subject (which provides cites to other good reads) is at < http://tr.im/nqPc >. At the end of the day, the website owner must establish that its website "look and feel" is distinctive (i.e., it must establish that consumers who frequent that type of online marketplace acknowledge and rely on the distinguishing features of the website as the means to identity that, and only that, website).

What is unsettled, at least for me, is whether a website's look and feel can be "inherently" distinctive (i.e., by evaluating it's distinguishing features in light of existing websites) or whether the website owner must establish that the look and feel of the website has "acquired" distinctiveness in the minds of consumers (i.e, because of long use, extensive advertising, etc.). The former requires less work (and money) to prove.

In short -- although that's way too late -- your website's look and feel may be protectable under trade dress law. You have very high hurdles to go over however. As noted by my colleague, copyright law provides a more ready bundle of protections that you can use to protect the content and appearance of your website.