Drawing of Apple’s Flagship Store can be registered as trademark
> October 2014
In July, the European Court of Justice in Luxemburg has answered questions of the German Federal Patent Tribunal as to whether the drawing of the shop fittings of an Apple store is eligible for registration as a trademark for services.
In the US, Apple had a three-dimensional trademark registered for retail services. The trademark consists of the representation of its stores called "flagship stores" in form of a multicolour drawing. Due to international registration, Apple wanted to include Germany in the protection of the trademark. The German Patent and Trademark Office dismissed the extension of protection. It took the view that the illustration of the Apple point of sale was only the representation of an essential aspect of the entrepreneurial trading services, i.e. selling. Consumers would not regard the shop fittings of the point of sale as a hint to the commercial origin. Further, the represented point of sale would not be very different from the competitors' stores. Apple filed an appeal against this decision with the German Federal Patent Tribunal. In contrast to the German Patent and Trademark Office, this Tribunal was of the opinion that the representation of the shop fittings was different from the shop-fittings of competitors. However, it had some doubts regarding trademark issues and addressed the European Court of Justice for clarification.The European Court of Justice found that protection existed. First, it repeated the three requirements for registering a trademark. Object of the registration must be a trademark. This trademark must be capable of being represented graphically and must be suited to discriminate between "goods" or "services" of different enterprises. The Court considered the first two requirements to be fulfilled without any problems. Considering the distinctiveness of how to represent a point of sale, the Court confirmed that it was generally suited. The distinctiveness of a representation is judged on the basis of goods or services for which registration has been sought and on the basis of its perception by the relevant public. Further, the Court pointed out that it seems that the drawing in question can basically be registrable as a trademark for services.
The German Federal Patent Tribunal has to consider the findings of the European Court of Justice when taking a final decision in that case.
