Retailers invest a lot of time and money into promoting their brands and logos. To protect these brand assets it is recommended that they are registered as Trade Marks.
A registered Trade Mark gives legal protection against a competitor or counterfeiter using the same or confusingly similar brand assets without permission.
Recently a number of retailers have also been making a substantial investment to create a unique retail environment, reinforcing the customer’s brand experience. This has raised the question: to what extent can store formats be protected against copying.
Apple: US Trade Mark case
Earlier this year Apple created a stir in the industry when after a three year battle they finally obtained a Trade Mark in the US over the distinctive layout of their stores. The Trade Mark specification filed at the US Trade Mark office contains a detailed description of the key features of an Apple store including,
“Rectangular tables arranged in a line in the middle of the store parallel to the walls and extending from the storefront to the back of the store” (cited from the Apple US trade mark application)
This type of detail when read in isolation raised industry concerns about the scope of monopoly in the market.
Apple has applied to extend this brand protection to a number of countries including Germany but has encountered legal objections. There is a concern within the EU that granting a legal monopoly over store layouts could go too far in protecting aspects of design that should be available to other retailers.
The pending case will decide the extent to which store layouts are protectable as trade marks under EU law.
Evolution of store layout
Store layouts naturally evolve over time driven by such factors as:
- Changing patterns of customer demand
- Increased use of technology
- Use of different structural materials e.g. glass
Why should businesses that have the funds to adapt early to these changes be able to restrict the freedom of those who follow later?
On the other hand, where a retailer invests in developing a distinctive retail environment that is strongly linked with the brand, it only seems fair there should be legal protection to stop copycat stores springing up to cash in on the concept or worse actively confuse customers.
What should you do?
Any retailer considering seeking Trade Mark protection for the design and layout of its retail stores is advised to note of the high threshold of distinctiveness and originality that Apple, a global well-known brand, had to overcome.