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Can a store layout really be registered as a trade mark? Theo Savvides, a partner at Osborne Clarke, examines the significance of a ruling by the Court of Justice of the European Union (CJEU) that Apple could register its store layout as a trade mark, provided certain conditions were met.
Apple Inc v Deutsches Patent-und Markenamt: C-421/13  All ER (D) 137 (Jul)
What are the issues concerning the type of registration sought by Apple?
Apple was seeking to register its flagship store layout as a trade mark in Germany. Its application was for a three-dimensional trade mark consisting of the representation, by a colour design of the store layout, to be registered for retail services featuring computers, computer software, computer peripherals, mobile phones, consumer electronics and related accessories and demonstrations of products relating thereto. It sought to represent the store layout by reference to a general description ('the distinctive design and layout of a retail store') and a graphic representation of the store layout.
The German trade mark office refused the application on the grounds that the store layout design was nothing more than the representation of an essential aspect of Apple's business and was not sufficiently distinguishable from the stores of other providers of electronic products. The appellate court found that the store layout design Apple sought to register had features that distinguished it from the usual layout of retail stores in the electronics sector. However, it took the view that the application raised more fundamental issues of trade mark law as to:
o the registrability of store layouts in general under arts 2 and 3(1)
o whether the art 2 requirement that the sign should be capable of being represented graphically was satisfied by a representation of the store layout by reference to a design alone or with additions such as a description of the layout, indications of the exact dimensions of the layout in metres or relative dimensions of the layout, with indications of the relative proportions of the layout dimension
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