A few weeks ago, I attended the Social Media for Sustainability conference hosted by Justmeans. I met Joey and Stacie Shepp there and Joey told me about their project, Open Brands.
It’s a brand. How do you know? Because the USPTO says so. And, because every Apple store (of which there are 395 worldwide) looks essentially just like this. This overall “look and feel” is Apple’s intangible intellectual property — its trade dress. And, not just because Apple says so, but because Apple’s attorneys convinced the USPTO that it is so. And so . . . on January 22, 2013, the USPTO issued Apple a Certificate of Registration (on the Principal Register) for the layout of its stores.
This irked some folks (like the readers of Wired), who seem to think Apple is overreaching by protecting the store design layout. As a brand owner though, Apple is wise to have as many arrows as possible in its quiver. After all, when your fortress comes under attack, you want a substantial arsenal. In this case the fortress is that in store experience that makes Apple, Apple.
No, this doesn’t mean that other stores can no longer use wooden display tables or have big glass windows (though I can see The Daily Show segment as I write — stores across America boarding up their big glass windows and cutting their rectangular tables into small, oddly shaped tables after receiving cease & desist letters from Big Bully Apple . . . ). Apple’s registration is limited to “retail store services featuring computers, computer software, computer peripherals, mobile phones, consumer electronics and related accessories, and demonstration of products relating thereto.” Ergo, that little boutique on Main Street with all the odd knick knacks laid out on display tables will be just fine. What Apple aims to prevent with this registration is counterfeit Apple stores. And it’s not the only one.
Chipotle registered the trade dress in its restaurant layout, as did the California restaurant chain Dos Coyotes and the folks at Pub Group Investments, who protected both their restaurant layout and bar layout for The Pub restaurants (presumably because this was their only hope for brand protection, since their name is so obviously generic). The earliest retail configuration trade dress registration that remains LIVE today is for FOTOMAT drive-in photographic supply stores, which was registered in 1972 (and my guess is soon will be canceled for a failure to renew). Wawa Food Market is the second oldest, with a registration for the appearance of the outside of its grocery stores that was issued in 1984. In other retail trade dress of note, Ikea owns a registration for the outside of its furniture stores as does Walgreen for its retail stores. Apparently, consumer confusion is common at gas stations (must be all the fumes!) as most big gas companies own trade dress registrations for the layout of their gas stations: Chevron; Texaco; Hess; BP and Shell. Even Clean Energy Corp seems to be aware of this trend, having applied to register its trade dress in its bio fueling station.
Though Apple is experiencing a bit of a media melodrama over its registration of its retail store trade dress, at the end of the day, it’s better to be well armed (with IP protection) against pirates than to find yourself a sitting duck.