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Companies spend a significant part of their investment in order to create a Brand experience for the consumer. Besides large sums spent on the design of consumer goods, companies such as Apple are eager to create a brand experience by implementing a certain store design. Hence, these companies have a well-reasoned urge to protect such distinct store designs utilizing the current intellectual property system. In the tradition of the U.S. approach, where the get-up of a business venue can be protected by trade dress law, the most recent European Jurisprudence seems to tend towards the protection of such a get-up by trade mark law. As this could be good news for companies with a distinct store concept and design, this new approach also raises some concern: How will the protection of the get-up of a business venue affect competition? What are the measures to guarantee only distinct and non-functional store designs will find their way into the holy land of trade mark protection? This article analyzes and compares the current legal situation in the U.S. and the EU and discusses the available measures in place that will safeguard an undistorted competition.
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