Trademarks and Trade Dress Protection

The term ‘trade dress’ is sometimes used to describe something as nebulous as a store layout. Trade dress is specifically recognised in US trade mark law and it is possible to get a registration for it, although it very likely that you will need to prove that the layout has been used for a considerable period of time, and has therefore become distinctive of your business.

As mentioned, it is an area recognised within US trade mark law however one which is not often spoken about within the UK. Most notable is the recent developments surrounding Apple and their success in gaining a US trade mark registration for the layout (or interior design) of the Apple store. Apple now has exclusive rights to the layout – or indeed any confusingly similar layouts – in the area of stores selling electronic goods. This inevitably hoists their brand image to even dizzier heights and creates a clear divide between themselves and their fierce competitors.

Forming part of the registration is a diagram comprised by Apple’s representatives explaining which specific aspects of their stores they wish to protect. Accompanying the diagram is a description boasting significant detail in order to gain the exact protection required. For example, a certain aspect of Apple’s store which they wanted to protect was the iconic ‘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’ and the ‘multi-tiered shelving along the sidewalls’.

It is not difficult to understand why Apple, or any other company for that matter, would desire such a registration. For example, it is thought the motivation behind Apple’s registration is the ability now to sue copycat stores in its largest market, China. Although their registration so far only covers the US, on the basis that it has been accepted there, they are sure to pursue registration in other countries too. In addition, there have also been comments about Apple being concerned about Microsoft’s stores becoming increasingly similar to that of their own. Whatever is the true reasoning behind Apple’s registration, it has undoubtedly put their company in a much stronger position as their specific consumers, and every passing customer, can now consider Apple’s stores as that of their own invention and part of their innovative brand image.

Therefore in summary, the purpose of Apple obtaining trade dress protection over the design and layout of its stores is to protect its brand, to provide consumers with a consistent look and feel when inside a store, and to protect itself from any infringing companies. However, it is interesting to note that Apple is not the first computer retail store to obtain trade dress protection for its stores. Microsoft obtained trade dress protection in October 2011 for its new retail stores as well.

Though similarities between the marks do obviously exist, the differences are noticeable as well. It will be interesting to see how Apple and Microsoft protect the branding of their stores as time passes.

However, in the meantime, if you feel as if your store layout has acquired distinctiveness then protection should most definitely be pursued. It is a strong weapon for a business and, as previously mentioned, can protect your brand from infringing companies whilst giving your customers the confidence to know they are buying your product from your store.

Harry Jeffries

Southampton Solent Law student