Presentation which depicts the layout of a store may constitute a trade mark under circumstances
10-09-2014 Print this page
Presentation which depicts the layout of a store may constitute a trade mark, even if it does not contain any indication of the sizes and proportions of the presentation
"19. It follows that a representation, such as that at issue in the main proceedings, which depicts the layout of a retail store by means of an integral collection of lines, curves and shapes, may constitute a trade mark provided that it is capable of distinguishing the products or services of one undertaking from those of other undertakings.
20. As the French Government and the Commission have submitted, this could be the case when the depicted layout departs significantly from the norm or customs of the economic sector concerned (see, by analogy, as to signs consisting of the appearance of the product itself, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 28, and Vuitton Malletier v OHIM, C‑97/12 P, EU:C:2014:324, paragraph 52).
19. Consequently, such a representation satisfies the first and second conditions referred to at paragraph 17 of this judgment, without it being necessary either, on the one hand, to attribute any relevance to the fact that the design does not contain any indication as to the size and proportions of the retail store that it depicts, or, on the other hand, to examine whether such a design could equally, as a ‘presentation of the establishment in which a service is provided’, be treated in the same way as ‘packaging’ within the meaning of Article 2 of Directive 2008/95."
Registration also legitimate for services that do not form an integral part of the offer for sale of those goods
"26. In this regard, it must be held that, if none of the grounds for refusing registration set out in Directive 2008/95 preclude it, a sign depicting the layout of the flagship stores of a goods manufacturer may legitimately be registered not only for the goods themselves but also for services falling within one of the classes under the Nice Agreement concerning services, where those services do not form an integral part of the offer for sale of those goods. Certain services, such as those referred to in Apple’s application and clarified by Apple during the hearing, which consist of carrying out, in such stores, demonstrations by means of seminars of the products that are displayed there, can themselves constitute remunerated services falling within the concept of ‘service’."
IPPT20140710, CJEU, Apple v Patent und Markenamt
