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Holly Hogan is an intellectual property attorney with K&L Gates LLP in San Francisco, California, representing technology and consumer goods companies in the full spectrum of intellectual property litigation. Her practice includes patent, trademark, and copyright litigation before federal courts, the ITC, and the Federal Circuit. The author wishes to thank Christine Redfield and Susan Jackson for their guidance. Please note that this article should not be construed as providing legal advice.
Restaurants have obtained trade dress registration for their interior designs. So too have clothing stores. And in an emerging trend, high tech companies are also seeking trade dress registrations for their brick and mortar retail stores. Several high tech companies, including Apple, Cricket Communications, and Equinix, have successfully obtained protection for their retail store trade dress.1
Obtaining registration for retail store trade dress presents three unique challenges. First, the company must precisely identify the store design trade dress; a store’s general theme or “look and feel” is not enough. Second, a company must show that the trade dress is either inherently distinctive or has acquired distinctiveness through consumer recognition, even though it consists of commonplace elements like walls and tables. And third, a company must demonstrate that its design, which may contain purposeful elements like chairs and shelving, is not functional. This article examines how several high tech companies overcame these challenges to obtain registrations on the principal or supplemental register for retail store trade dress.