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Apple trains its Reality Distortion Field on the CJEU

Keltie LLP

K2 IP Limited

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Apple layout TM colour

Apple’s annual iPhone announcement is today and the liberal deployment of the Reality Distortion Field is expected to be trained on Fanbois the world over. However, in other Apple news comes notice from the UK Intellectual Property Office that an Apple trade mark case is being referred to the Court of Justice of the European Union (Case C-421/13 though there are no available documents at present).

The case concerns Apple’s trade mark application in respect of the layout of its stores. Yes, you read that correctly, Apple’s store layout trade mark!

Back in May 2010 Apple applied for two US trade marks (US Reg. No. 4277914 and US Reg. No. 4277913) directed towards their store layout. One mark was in black and white and the colour version is shown as this post’s image above. The US marks were registered in January of this year as picked up on the Patently Apple website here. Apple however also filed (in November 2010) corresponding applications under the Madrid System for the International Registration of Marks (IR numbers 1060320 and 1060321) and these applications didn’t go so well.

As the UKIPO summary notes case C-421/13 relates to:

“a request for a preliminary ruling in a case concerning an application for the domestic extension of protection for a 3D trade mark which was registered internationally for services in Class 35 (retail store services), described as ‘distinctive design and layout of a retail store’.

The application was refused on the grounds that it was devoid of distinctive character.”

The questions referred to the CJEU are “for a preliminary ruling on the interpretation of Articles 2 and 3 of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks”, namely:

  1. Is article 2 of the Directive to be interpreted as meaning that the possibility of protection for the ‘packaging of goods’ also extends to the layout in which a service is incorporated?
  2. Are Articles 2 and 3(1) of the Directive to be interpreted as meaning that a sign representing the layout in which the service is incorporated is capable of being registered as a trade mark?
  3. Is Article 2 of the Directive to be interpreted as meaning that the requirement of graphic representability is satisfied by a drawn representation alone or with such additions as a description of the layout or indications of absolute dimensions in metres or of relative dimensions with indications as to proportions?
  4. Is Article 2 of the Directive to be interpreted as meaning that the scale of the protection afforded by a trade mark for retail services also extends to the goods produced by the retailer itself?

Comments are requested by 16 September 2013 and the UK’s deadline to lodge observations with the CJEU is 12 November 2013. Anyone wishing to comment is invited to do so via e-mail policy@ipo.gov.uk by 16 September 2013.

Following the iPhone announcements today, Apple will now presumably be cranking the reality distortion field “up to 11” in a bid to overcome refusal letters such as this (IPO IR refusal letter http://www.wipo.int/romarin//pdf/58/36/5836613.pdf).

Mark Richardson   10 September 2013


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