One of the firm’s trainees, who is a huge fan of both intellectual property and the great British pub, once asked me why it was possible to have so many Red Lions, White Horses or Kings Heads given the common law of passing off. Pat on the back for said trainee who is starting to think like a real lawyer, but I explained that pub names go back so far in history and are so archaic, that no one could possibly have a claim to their origin. “Fair enough” said the trainee, “perhaps it makes sense as all the pubs look the same these days anyway.”

Our pub chat got me thinking about the recent application by Apple Inc in Germany. Indeed, Apple has attempted to register the interior design and unique layout of its Apple Stores. The Community Trade Mark Regulations have a pretty wide definition of what may be registered, and state that a trade mark may consist of any signs capable of being represented graphically….including…designs, letters, numerals, the shape of goods or their packaging. The German courts however, have questioned whether a registration of a premises layout is even possible and have referred the matter to the Court of Justice of the European Union (CJEU).

In January 2013, Apple was successful in registering a trade mark in the US for the design and layout of its retail stores. The application was initially rejected by the United States Patent and Trademark Office (USPTO) for lack of distinctiveness, but Apple managed to overcome the objection by filing survey evidence. Over 40{ba3215b0bf35eaeb06be458b3396ffbfc50bb9db10c9ff1594dfc3875e90ea48} of consumer respondents were able to identify Apple store fronts as Apple stores, even with the logos and other distinguishing marks removed.

If you were teleported into the middle of a shop, with no logos, trademarks or brand names in sight, would you recognise where you were from just the shop layout? Hollister? Zara?

Interestingly, the CJEU held last month that a retail store design can be registered as a trade mark. No doubt we will see other retailers registering their unique layouts to prevent copy cats from using similar concepts. By having shop designs and concepts registered, retailers will find it easier to bring enforcement action against those wanting to jump on their brand wagon.