IP law is about protecting ideas, and not just in the world of patents. Branding, too, grows ever more creative as technology advances, and the law must keep pace in order to protect and reward innovation for the benefit of both market and consumers.
The CJEU’s recent affirmation that retail store lay-outs are registrable as trademarks (see page 23 of this edition of Make Your Mark) is a good example of how European trademark law is adapting to changes in commerce. The distinctive lay-out of Apple stores is well-known to consumers and was granted protection by the USPTO. In Europe, however, applications for the mark fared well in some member states, and badly in others. In Germany the Bundespatentgericht asked the CJEU to consider the inherent registrability of retail store lay-outs, and in reply the CJEU affirmed that provided the lay-out can be represented graphically and is capable of distinguishing the goods and services of one trader from those of another, there is no reason why it should not be registrable (Apple, Inc. v Deutsches Patent- und Markenamt, Case C-421/13).
The Court confirmed that there is no requirement when applying for such marks by way of a graphic design to drill down to details of square footage and relative dimensions and proportions. Indeed, as Cadbury learned in the recent appeal relating to its application for the colour purple, there are traps for the unwary in saying too much. A picture may be worth more than a thousand words.
The Apple decision is very welcome. The economy thrives on consumer spending, and one way that shops encourage that is by creating distinctive, familiar environments where customers feel comfortable and want to buy. The recognition that shop environments can be distinctive and worthy of protection against lookalikes encourages retailers to develop recognisable physical environments and may ultimately give High Street shopping the boost it needs at a time when so much shopping is being diverted online.
This is not to suggest that the road to registration will be smooth in Europe for retail store lay-outs. Unless the elements of lay-out are notably different from what consumers normally encounter, evidence of acquired distinctiveness may well be needed. However, every case will be examined on its merits, and with more applications will come greater clarity as to where the bar is set on inherent registrability for such marks.
Of course, protection is only one part of encouraging innovation. The ability to enforce and defend IP rights is also critical. In this regard, it is encouraging to see that the Intellectual Property Enterprise Court (IPEC), a Court designed to provide access to justice for SMEs in IP matters, continues to grow and thrive. While litigation is and should be a last resort, nonetheless it greatly strengthens brand owners to know that they can if necessary bring or defend proceedings in a cost-effective forum. The IPEC is, in this respect, a great leveller.
Angela Fox’s new book, Intellectual Property Enterprise Court: Practice and Procedure, just out with Sweet & Maxwell, illuminates the Court’s procedures and explains how it can be used for the proportionate resolution of IP disputes, both smaller and larger. We hope that the Court will continue to go from strength to strength in enabling SMEs to leverage their IP rights, and thereby encouraging innovation from the other end.