Last week the United States Patent & Trademark Office issued a registration to Apple, Inc. for the design and layout of the Apple retail stores. The registration issued as
U.S. Registration No. 4,277,914, and protects the totality of the features of the retail store, including but not limited to the clear glass storefront, paneled facade, rectangular recessed lighting units, cantilevered shelves. The Trademark Office determined that this combination of elements had acquired distinctiveness, and that consumers recognize these elements as an identifying symbol of Apple.
The look of Apple's retail stores is protectable as trade dress. In its 1992
Two Pesos, Inc. v. Taco Cabana, Inc. decision, the U.S. Supreme Court held that trade
dress that is inherently distinctive is protectable under Lanham Act § 43(a)
without a showing that the trade dress has acquired secondary meaning. However, the Trademark Office found that the design of the Apple store was
not inherently distinctive. When a mark is refused registration on the basis that it lacks distinctiveness, the applicant must submit evidence to the Trademark Office showing that the public associates the mark as the source of the goods or services promoted under that mark. This is precisely what Apple did. Apple strenghtened its claim of acquired distinctiveness by claiming that the trade dress had been in use in commerce for more than 5 years.
The issuance of this registration is just one step forward in Apple's fight against copy cat retail stores, which have been popping up around the world at a surprisingly high rate. Apple's U.S. trademark Registration in its retail store design provides prima facia evidence of Apple's rights in the look and feel of the popular retail stores.
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