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Minding the Store: Trade Dress Protection for Retail Store Designs

Holly Hogan

©2014. Published in Landslide, Vol. 6, No. 4, March/April 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

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.

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