Apple has been seeking registration of its flagship store layout as a three-dimensional trademark for years now. In November 2010, the United States Patent and Trademark Office (USPTO) accepted Apple’s application for registration of its store layout as a trademark. Today the European Court of Justice ruled, as did the USPTO, that Apple’s flagship store layout may be registered as a trademark on three conditions:
1. the subject-matter as such must be a sign;
2. that sign must be capable of being represented graphically; and
3. the sign must be capable of distinguishing the goods or services of one undertaking from those of other undertakings.
The ECJ ruled that the above representation of Apple’s three-dimensional store layout is a sign that is capable of graphic representation. It its opinion, it is irrelevant that the representation does not contain any indication as to the size or proportions of the retail store that it depicts.
Then the sign’s distinctiveness must be assessed. In concrete terms, the distinctive character of the sign must be assessed by reference to the goods or services for which registration is applied and to the perception of the relevant public (the average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect).
It remains to be seen whether Apple’s flagship store layout is inherently distinctive. If Apple’s store layout is devoid of any distinctive character and is therefore refused registration, Apple will need to demonstrate – as it did in the United States – through market research or otherwise that its flagship store layout has acquired distinctiveness (has become customary).