The Court of Justice of the European Union (CJ) has acknowledged that the design layout of a shop can conceivably be registered as a trade mark for retail store services within the European Union.

Apple had successfully registered the trade mark in the US in 2010, and was seeking additional protection in a number of European countries under the Madrid system. The German trade mark registry refused the application, and Apple appealed.

Court of Justice of the EU confirms the layout of a store can be registered

The appeal court referred a number of questions to the CJ as regards whether such a mark was capable of registration as a trade mark (an indicator of commercial origin). The court has confirmed that, in theory, such marks are acceptable – with some provisos.

Importantly, the decision does not mean that Apple's trade mark is automatically going to be registered. The German authorities will now apply the court's guidance to the specific facts.

The court has been clear that, in theory, the design and layout of a store is registrable as a trade mark – but that doesn't mean all shop layouts (or even Apple's) will be accepted. The layout must be sufficiently distinctive to enable consumers to distinguish the retail services of the owner from those of other retailers.

The court has also made it clear that no other grounds of refusal should apply. Given that one such ground is that the mark must not consist exclusively of a sign which has become customary in the bona fide and established practices of the trade, Apple's success is by no means guaranteed if its application is deemed to resemble other shop designs. In theory the layout of Apple stores is registrable as a trade mark; whether the German registry agrees that Apple has overcome these various legal hurdles in practice remains to be seen.

UK registration for a store design?

The UK designation of the international mark is still pending – although the UK authorities will have to apply the same guidance from the CJ, they could conceivably come to a different conclusion to the German registry.