On 10 July 2014, the Court of Justice of the European Union (CJEU) ruled that the design of a retail store’s layout could be registered as a trade mark. (C-421/13 Apple Inc. v Deutsches Patent-und Markenamt).

Apple had successfully registered a three-dimensional trade mark in the US of the design of its flagship stores’ layout and sought to extend protection to Germany, by way of an International Registration.

However, the German Patent and Trade Mark Office (DPMA) refused registration on the basis that the representation of the retail store’s layout was nothing other than an essential aspect of the proprietor’s business which did not sufficiently distinguish it from other stores providing electronic products. It further held that consumers would not perceive the layout of a retail store as an indication of commercial origin. Apple appealed the DPMA’s decision to the German Federal Patent Court (Bundespatentgericht). The Bundespatentgericht regarded certain features of the store’s layout to be capable of distinguishing it from the normal layout of retail stores in the electronic sector, however it sought the CJU’s input before it could make an informed decision.

The CJEU held that the representation of the layout of a retail store (without an indication to size or proportions) may be registered as a trade mark, not only for the manufacturer’s goods themselves, but also for services relating to the goods on sale but which do not form an integral part of the offer for sale itself. However, the sign must be capable of distinguishing the goods or services of the applicant from those of other undertakings and registration must not be precluded by any of the usual grounds for refusal. In addition, the Court made it clear that this decision extends to services relating to the demonstration of products in-store.

This unprecedented decision means that trade mark owners who register their store layout designs will be able to use their registered rights to prevent imitators from emulating their designs. It will be interesting to see if this ruling will result in other providers of consumer electronics, such as Samsung and Microsoft, scrambling to register their store layouts as trade marks in Europe.