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can the layout of a retail store be registered as a trade mark?

17 July 2014

In a potentially ground-breaking decision the Court of Justice of the European Union has confirmed (in response to an application by Apple Inc. for a device mark depicting its flagship store design) that – subject to certain notable caveats – a representation that depicts the layout of a retail store by means of an integral collection of lines, curves and shapes, may constitute a trade mark (despite not indicating size/proportions) – provided that the representation is capable of distinguishing the goods or services of one undertaking from those of other undertakings.

Retailers following this decision closely will note this hurdle; the courts have historically been strict in assessing the average consumer’s ability to distinguish such so-called ‘exotic’ trade marks, with the proposed mark being required to depart significantly from the norm or customs of the economic sector concerned, as a minimum requirement (not an automatic guarantee of registrability) and requiring that consumers have come to rely on the mark (not any associated trade mark) as indicating the origin of the goods/services. Distinctiveness is assessed by reference to the goods/services in question having regard to the perception of the relevant public, a hurdle which may be easier for Apple – with its distinctive style – to overcome than it would be for other retailers, although this remains to be seen.

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