South Africa: The Apple Store

Last Updated: 28 March 2013
Article by Gaelyn Scott

Most Read Contributor in South Africa, September 2018

It's been well reported that Apple has managed to get a US trade mark registration for the layout or interior design (the look, if you like) of the Apple store. What this means is that Apple has exclusive rights to this layout - or indeed any confusingly similar layout - in the area of stores selling electronic goods. A diagram forms part of the registration and there is apparently a description which explains that the layout comprises various things, including 'a clear glass storefront surrounded by a panelled façade... rectangular recessed lighting units within the store... cantilevered shelves below the recessed display spaces...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 sidewalls... an oblong table with stools located at the back of the store, set below video screens flush mounted on the back wall.'

Some say that Apple's motivation for getting this registration was to deal with copycat stores in its largest market, China.  Although the registration only covers the USA, there are apparently plans to seek registrations in various other countries on the basis of the US registration. Others say that Apple is concerned about the fact that Microsoft stores look similar to Apple stores. Whatever the reason, it's not hard to understand why Apple would want a registration like this.

But it was the very fact that Apple was able to get a registration of this nature that surprised many people.  But is it really that radical - if something like a colour or a shape can function as a trade mark for goods, isn't it possible that the appearance of a store or other business premises can act as the trade mark of a business that offers services? And if shapes and colours can be registered as trade marks (it's difficult but it happens occasionally), why not store layouts?

The term 'trade dress' is sometimes used to describe something as nebulous as a  store layout.  Trade dress is specifically recognised in US trade mark law and it is possible to get a registration for it, although it very likely that you will need to prove that the layout has been used for a considerable period of time, and that it  has therefore become distinctive of your business – indeed in the case of Apple, the authorities were not prepared to accept that the layout was inherently distinctive, but they did accept that it had become distinctive as the trade mark of Apple as a result of use going back to 2006. In 1992 the US Supreme Court heard a case involving trade dress and it held that a restaurant chain, Two Pesos, could successfully enforce its trade dress registration against a competitor. In that case,  the layout was described as follows:  'A festive eating atmosphere... decorated with artefacts, bright colours, paintings and murals... exterior is a festive and vivid colour scheme using top border paint and neon stripes... bright awnings and umbrellas continue this theme.'

So the situation in the USA appears to be that trade dress can be registered as a trade mark if it is distinctive - inherently as it was in the Two Pesos case, or   through use as it was in the case of Apple - and provided that it is primarily non-functional.  But does the same situation apply in South Africa? It is important to note that US trade mark law is different from ours, and that the US Supreme Court did once say in a case that dealt with the registration of a single colour for goods (Qualitex) that a trade mark can be  'almost anything at all that is capable of carrying meaning'.   But the definition of   a 'mark' in the South African Trade Marks Act is also very wide: 'Any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforesaid.'  And, although we do follow the approach of the European courts - which is to say that a mark cannot be registered unless the graphic representation is clear, precise, intelligible, and durable - a layout could surely be represented with some precision by way of diagrams and a written description!

Even without a trade mark registration, it might still be possible to stop a competitor from using a similar trade dress through the common law remedy of passing-off. What you would need to do is show that your trade dress had acquired such a reputation that the use of a similar trade dress would lead to confusion. In effect, you might have to convince a court that if an ordinary customer were to walk into your competitor's store without paying attention, they might think they were in your store.   But the cases don't bode well. There was a case in the USA where a company called Happy's Pizza Franchise unsuccessfully tried to stop a competitor called Papa's Pizza from using a similar trade dress on the basis of its common law or unregistered rights. The court held that the trade dress was generic. There was a case in the UK, Jimmy Nicks, where a claim relating to a bar with a football stadium theme failed. And in South Africa we had the case of Spur Restaurants v Saddles Restaurants, where an unlawful competition claim failed because the court felt that the layout had not been sufficiently clearly defined.

Trade dress is something that you can perhaps protect and enforce in South Africa. But, as with all other types of trade marks, the more distinctive (interesting and original) your trade dress is, the better your chances will be.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions