Imitation is the sincerest form of flattery, or so they say. But nothing feels very flattering about having to launch a lawsuit in response to someone’s flat-out duplication of your stuff.
It’s a subject poised for hyper-attention over the next little bit, as retailers acquaint themselves with the peculiarities of the emerging area of trade dress protection.
The term “trade dress” refers to the total image of a business, good or service as composed by its overall composition, design, size, shape, colour, texture and graphics. In the retail arena, this might include distinctive counters, point-of-sale displays, overall store layout, signage and exterior building features.
All of this entered the spotlight recently when Apple sought — and acquired — a trademark registration for its unique store design.
As such, the company’s federal trademark registration that safeguards the replication of the design of its retail stores, both in the U.S. and in Europe is now part of the massive value of Apple brand’s $124.2-billion portfolio. This includes its clear glass storefront, rectangular recessed ceiling lighting, display cases on the outside walls, tables in the middle of the store and back-wall-mounted video screens.
To obtain a federal trademark registration for a store’s physical trade dress, a retailer must demonstrate that the design establishes a distinctive overall look and feel for its customers. If it has multiple outlets, the store designs generally have to be in place throughout all of them.
Apple’s and various others’ examples notwithstanding, it’s tricky business securing a federal trademark registration for a “unique” store design. Some retailers might find it’s not worth their trouble to add federal trade dress protection to their intellectual property portfolios. For others, however, such a declaration of exceptionality is a newly critical part of their efforts to stand out in a crowd.