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Apple are told they can protect its retail store layout as a trade mark in Europe


Apple has convinced the highest EU Court (the CJEU), that distinctive retail store layouts are capable of trade mark registration in Europe.

Apple applied in 2010 to register the following colour image of a 3D store layout as a trade mark in the US, securing registration in early 2013 for “retail store services featuring computers, computer software, computer peripherals, mobile phones, consumer electronics and related accessories and demonstrations of products relating thereto”.

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Apple also sought to extend protection to other key markets, including Switzerland, Germany, Spain, France, Ireland, Italy, Poland, Sweden and the UK among other European territories. It has enjoyed success in Spain, Poland, Italy and Ireland but faced objection in other EU countries including at the German PTO which referred a series of questions to the CJEU to help them determine whether the mark meets the requirements for registration in Europe.

In answering the questions, the CJEU has affirmed that “designs”, such as the one Apple is seeking to protect, are registerable as trade marks, provided they meet the fundamental requirements for all categories of marks, including that they serve as ‘badges of origin’ capable of distinguishing Apple’s goods or services from those of its competitors. The Court indicated that the layout of a retail store can achieve this where, for example, it “departs significantly from the norm or customs of the economic sector concerned.”

Clear of this initial hurdle, Apple must still satisfy IP offices around Europe that the sign has distinctive character in relation to the goods and services for which registration is sought in the minds of the EU public.

The court has also indicated that distinctive store layouts are registerable both for goods sold in those stores and associated services, including services that are integral to the offer for sale, (e.g. retail services) and services that are not (e.g. in-store demonstrations of the products on display or services relating to the personalisation or configuring of the goods on behalf of its customers).

While the decision offers fresh hope for Apple, it remains to be seen where else in Europe they will secure registrations and whether their lead will prompt others to seek trade mark protection for distinctive layouts and customer environments in Europe.

It will be interesting to see which offices accept that layouts are inherently distinctive and which ones will routinely require evidence to demonstrate that EU consumers appreciate that they originate from the applicant for registration and are distinct from competitors’ layouts. While the European Courts keep telling us that there are no special requirements for registration of less conventional marks, it seems likely that the UK and most other IP offices will want to see evidence that the layouts have become synonymous with a single retailer. Collecting appropriate evidence may well prove challenging.

The ruling may encourage new attempts to protect recognisable formats. Perhaps fast food chains are best placed to follow in Apple’s footsteps? There may also now be scope for protection of distinctive office and hotel layouts or even distinctive rail carriage and aircraft interiors. This might prove to be an interesting area of trade mark law for imaginative applicants.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

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