Have you ever been to an Apple Store? I have, and I found it a painful experience. But that was only because I was at least 20 years older than the average person in the room. And because the things they sell there really cost a lot of money and work better than my things, which don’t.
Otherwise, it’s very cool. And very distinctive.
The PTO agrees, and after no small amount of back-and-forth, it’s been widely reported that it has issued a trademark registration for the Apple Store’s layout.
Most of the coverage I’ve seen on this topic has been wretched — not only because it uses the word “trademarked” or describes Apple as “receiving a trademark,” but because it displays the lack of understanding about what trademarks are under U.S. law that such usage betrays. (No, not going there again, not today.) But with respect to the granting of a registration for Apple’s trademark — dare I say trademark claim? — I like this piece (cached version – balky server) by law student Deborah Goldman in the Washington College of Law publication, Intellectual Property Brief, which explains the issues well and is rich with links to primary sources.
Deborah notes that the two initial refusals for registration were not based on a lack of distinctiveness or functionality, which you’d expect, but on fairly technical aspects of the application. These are usually amenable to being overcome with some good draftsmanship, especially since the Examining Attorney will typically let you know what he’s looking for.* Naturally, lawyers who understand how to take such guidance are something Apple is able to procure: Read More…