TheApplestoreandunconventionaltrademarks-Bristows.pdfVIP

Jnl. Intellectual Property Law and Practice Advance Access published October 29, 2014 Journal of Intellectual Property Law Practice, 2014, 1 of 4 ARTICLE The Apple store and unconventional trade marks: how easy are they to enforce? Jeremy Blum and Amy Cullen* Downloaded from / by guest on October 30, 2014 The Court of Justice of the European Union (CJEU) recently gave judgment in a reference from the German Bundespatentgericht in Apple Inc v Deutches Patent und Markenamt (DPMA)1 where Apple sought to register a trade mark (shown below) consisting of a 3D representation of its ?agship stores. The CJEU held that the store representation may be registered as a trade mark, without further information about the proportions or layout of the store, provided that it is distinctive and not precluded from registration by any other provision. This store front and layout can therefore potentially be registered as a trade mark, and it is up to the referring court to consider whether it has distinctive character. This decision led the authors to re?ect on the scope of protection and enforcement of the store front and layout, if the mark is registered. There is relatively little case law, in the UK at least, which assesses infringement of ‘unconventional’ trade marks. The case law for ‘unconventional marks’ such as shapes and colours, tends to focus on registrability, and particularly on the requirement that the sign is capable of being represented graphically. This article considers the issues that might arise in connection with enforcing unconventional marks, and discusses the potential to enforce a trade mark for a shop representation. The authors ? Jeremy Blum is a partner with Bristows in London and Amy Cullen is an associate with the same ?rm. This article ? Following the judgment of the Court of Justice of the European Union in Apple Inc, regarding the potential registrability of a store front and layout as a trade mark, this article considers its potential enforcement val