Crabs, convenience stores and coffee houses—Trade mark and unfair competition protection for store front trade dress in Japan

Abstract

... It is a truism that product appearance plays an important role in the consumer’s purchase decisions. Increasingly, the overall consumer experience as impacted by the design of a store or restaurant is just as influential in the consumer’s selection process: as observed by retail design academics, ‘the external details, the frontage of the store, are important as first impressions can form a lasting image in the mind of the consumer’.1 Japan currently allows the registration of three dimensional marks and other non-traditional trade marks2 and several brand owners have taken advantage of this legal protection system to register the storefront or significant elements of the storefront trade dress as motion marks, three dimensional trade marks and position marks. This article will elaborate on these recent developments and how such distinctive and valuable trade indicia are protected in the world’s third largest economy. In order to succeed in ‘a cluttered visual environment, a restaurant’s façade must stand out from the rest of the pack’,3 so it is not surprising that the exterior and interior of any consumer enterprise like a restaurant, retail store and any other consumer-facing enterprise are designed intentionally to achieve this goal. Restaurant owners all over the world have been implementing this truism in the marketplace, and now brand owners can utilize motion trade marks to protect the valuable intellectual property found in their restaurant facades.