The way a store or restaurant looks is often central to the success of business. It is often also an asset of the business that can be protected as trade dress.
Restaurants and stores (successful ones, at least) tend to adopt consistent layouts, color schemes, and other thematic elements that help customers realize where they are. Think Chipotle, TGIFridays, or The Gap. All these businesses have a stores with a design that can be easily remembered, and most consumers, if dropped into one, would know where they are without having to look at any signs. It just “feels” like The Gap.
As Catlan McCurdy writes over at Duets Blog, the Apple Store has a specific look-and-feel to it, as well, and Microsoft apparently agreed, designing its stores to look – and operate – in an amazingly similar fashion. Apple has filed for a trademark registration on the design of the store – trade dress, really, but the Trademark Office has made an initial rejection. By law, trade dress is not inherently distinctive, and only inherently distinctive marks can be registered initially. Apple responded with 122 pages of proof that the layout has acquired distinctiveness and is thus entitled to registration.
The part of the file history I like best, though, is the mark description. I find the interior of an Apple Store to be incredibly Spartan. In contrast to a Chipotle that is adorned with corrugated metal, browns, greys, certain floor patterns, menus, and lighting, Apple Stores have uniqueness from their very lack of “stuff.” I would think that emphasizing and describing this lack of features as the feature to be protected would be difficult, but Apple has done it nicely with this description:
The mark consists of distinctive design and layout of a retail store featuring a primarily glass storefront, rectangular recessed lighting traversing the length of the store’s ceiling, Cantilevered shelving and recessed display spaces along the front side walls, rectangular tables arranged in a line in the middle of the store parallel to the walls and extending from the storefront to the back of the store, multi-tiered shelving along the rear walls, and an oblong table with stools located at the back of the store below video screens in the back wall.
Note that the mark was amended from its initial description: “The mark consists of distinctive design and layout of a retail store.”
I wonder, also, to what extent the Microsoft stores aren’t succeeding because they just aren’t cool. Apple, once geeky and obscure, is cool now, and some of that coolness rubs off on you when you step into an Apple store. I once was a Mac user, but have switched over to PCs, and I’ll admit that Microsoft has never really been cool, by anyone’s estimate – I just can’t see any cachet value in patronizing a Microsoft store.