Expanding European Law to Register 3D Service Marks for Business Décor Trade Dress: Part 2

摘要

Following the CJEU's recent ruling in Apple, registering the look and feel of business environments is now in principle possible under European law without stringent conditions or apparent limits. This article evaluates the significance of this novel development in registering 3D service marks for business trade dress through the lens of distinctiveness. "Distinctiveness"-the foundational characteristic of all protectable trade marks to convey source-related information to consumers-was in fact left unexamined in Apple. This two-part article uses this lack ofguidance to lay down the foundations for a more appropriate evaluation that takes account of the particular nature of service marks for business environments and presumed consumer reactions as part of the settled distinctiveness criterion for any mark that coincides with the appearance of the designated goods or services. It argues that this novel type of mark is not without problems and, while increasingly popular for businesses, raises significant concerns about competition and market freedom which other jurisdictions generally address through specific doctrinal tools such as the functionality doctrine. Apple expressly removed the application of comparable limitations available in the statutory text but this article contends that European courts do have some important doctrinal tools and policy-levers at their disposal for this task and these are largely part of the dynamic concept of distinctiveness. However desirable the aesthetic consumer experience conveyed by the look and feel of business environments, it is argued that the link between unconventional forms of trade dress and consumer source identification must be maintained as the most fundamental reason for recognising exclusive rights.