Back Off…That’s My Trade Dress!

Franchise systems, like businesses in general, no doubt recognize that today’s ever-increasingly competitive marketplace means taking those extra steps to ensure brand recognition. For retail businesses, this translates into creating familiar impressions which pass the drive-by-look test. In other words, will the typical consumer driving or walking down the street see a storefront and recognize it as an indicator of the source of goods and services provided by that establishment?

Undoubtedly, the brand managers and marketing gurus reading this post are now saying…DUH!

But my point is not that brand recognition matters—my point is that the means employed to capture that consumer recognition should be well crafted, meticulously developed, consistently applied, and zealously protected. For trademark lawyers and others familiar with these ideas, this likely brings to mind the U.S. Supreme Court’s decision in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), where the Court recognized the nature of “trade dress” and its consequent capability of being protected as a source indicator. The history and debate of trade dress disputes since the Two Pesos case is a topic which would take far longer than this post is intended to address. But suffice it to say that obtaining protection for trade dress is ordinarily much easier said than done.

To that point, however, enter the company which has played (at least) some role in the decision-making process of virtually every semi-informed user of technology in the modern era…APPLE. Just as it has been successful in launching new product after new product—and following more than two years of explanation and opposition—Apple has successfully obtained protection of the design and layout of its retail stores under U.S. Trademark Registration No. 4277914.

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The mark protects, among other things, the “clear glass storefront surrounded by a paneled facade consisting of large, rectangular horizontal panels over the top of the glass front, and two narrower panels stacked on either side of the storefront.” On the interior, the mark covers “rectangular recessed lighting units [which] traverse the length of the store’s ceiling . . . cantilevered shelves below recessed display spaces along the side walls, and rectangular tables arranged in a line in the middle of the store parallel to the walls and extending from the storefront to the back of the store.” The mark also describes the familiar “Genius Bar” and its “oblong table with stools located at the back of the store, set below video screens flush mounted on the back wall.”

Apple’s success was based on its ability to create a look, feel, and appearance in its retail stores which have a distinctive character in the collective mind of consumers. In legal terms, the trade dress has “acquired distinctiveness” and is, therefore, worthy of trademark protection. In practical terms, Apple’s successful battle to obtain registration of its trade dress provides a model for crafting, developing, and applying design and layout elements which are unique and aimed at capturing consistent consumer recognition.

David L. Pratt II is a franchise and brand expansion attorney with DL PRATT, PC. Like all posts made on this blog, this posting is solely for informational purposes and is in no way intended to be, or to be interpreted or construed as, legal advice or as creating an attorney-client relationship

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