Unconventional and non-traditional trademarks see considerable expansion in their scope over the years. See for instance, the grant of "well-known mark" status to ISKON or the recognition of protectability of slogans as marks.

The design/trade dress and layout of store interiors and exteriors is the latest to make its way to this unconventional category of marks.

Store layouts are protectable intellectual property (IP) asset given an ultra-competitive business ecosystem. Brand owners are leaving no stone unturned to be experential for the consumers, and not a mere service. Consumers have begun to identify store layouts with associated brands. This is cue to explore protection of the IP in them, with a view to bolster future enforcement actions.

The Indian trademark law has no express provision to protect store layouts. But the definition of trademark is wide enough to encompass any mark which:

a) Has a graphic representation; and

b) that also functions as a source identifier.

A parallel in the US in a recent instance, is when certain color-marks were recognised for being "inherently disinctive".

The Registry's e-filing portal provides the following categories under which to file applications:

word, device, shape of goods, three dimensional, colour and sound.

The Indian trademarks registry accepts store layout applications under the device mark category. In contrast, some foreign trade mark offices accept these applicatons under three-dimensional marks or under the "others" category.

For instance the registry asked to amend the application[2] for the layout of "The Vedic restaurant" (shown below). Its initial filing was as a three-dimensional mark. The registry accepted the filing under the device mark category.

Crucially, the mark description and features in store layout applications are detailed. Guidelines for such description are absent in Indian law. There is no answer to whether to use dotted or straight lines to depict parts of the mark in which protection is claimed. In such a scenario, detailed description of the mark highlighting the unique placement of the articles, the colour scheme, the wording in the mark, spacing between articles, theme and get up, etc., assumes automatic significance in India.

As a corollary, one of the credible challenges that applications for Store Layouts face, is proving "distinctiveness". While the Registry does not seem to label such applications as inherently non-distinctive – the application[3] for the design of the entrance of a MARY COHR salon and layout of its interior (shown below), for instance, was registered without receiving any objections – more often, than not, such applications are objected on the ground that the mark is non-distinctive and, as such, not capable of distinguishing the goods/ services of one person from those of others.

Objections can be overcome by annexing pictures of the actual stores, showing evidence of use, if any, stressing on the description of mark and consistency in the store layouts worldwide, for instance.

It may seem reasonable to assume that applications for store layouts would seek protection in respect of services, this may not necessarily be true. For instance, many applications for the layout of HEALTH & GLOW stores (see, an example, below) have been accepted by the Registry in respect of cosmetics and pharmaceutical products in Classes 3 and 5, respectively.

While the registration of a Store Layout confers statutory rights in it, thereby opening the doors to the remedy of trade mark infringement, the trade dress of Store Layouts can also be protected through the common law remedy of passing-off. The landmark Delhi High Court ruling in Colgate Palmolive Company v. Anchor Health and Beauty Products[8], observing trade dress to be the overall impression that a customer gets as to the source and origin of the goods from visual impression of colour combination, shape of the container, packaging etc. is of prominence here.

The recognition of Store Layouts as a form of intellectual property has reinforced the importance of a consumer's visual perception of her/his surroundings, that should be tapped by brand owners to enhance their brand recall value. Meanwhile, caveat interior designers.

[1] Section 2(zb) of The Trade Marks Act, 1999 defines "trade mark" as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours..."

[2] Application No. 4100482

[3] Application No. 4073262

[4] Application No. 4191623

[5] Application No. 4134918

[6] Application No. 4169443

[7] IRDI No. 2890926 (IR No. 1224986)

[8] 108 (2003) DLT 51

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.