Japanese Intellectual Property, Patent and Trademark Law Firm in Japan

Unlike U.S. practice, a trade dress is not regarded as a protectable subject under the Japanese Trademark Act. *1

There remain possibilities of protection for a restaurant's or shop's design (comprising of decor, layout, style...). It can be protected under the Anti-Unfair Competition Act. 

Under the Japanese Anti-Unfair Competition Act, the trade dress has to be "an indication of goods or business " and "well-known" in order to be protected.

“An indication of goods or business“ has to be distinctive and non-functional. This sometimes makes it difficult for a trade dress to gain protection.
The latest case "Nishimatsuya v. AEON retail" shows an example where a layout of goods in the shop was not deemed as "an indication of business".
(Please visit this site to see Nishimatsuya's layout: http://matome.naver.jp/odai/2127080081936842701)

Here are the disputed cases on protection for a restaurant's or shop's design:
    "Panya no shokudo" (Sup. Ct. Decision on Aug. 27, 1942)
    "UNICLO v. PAS" (provisional injunction case, settled in 2002)
    "Maido ookini shokudo v. Meshiya shokudo" (H19(ne)2261: Osaka H.C.Desicion on Dec.4, 2009)
    "Nishimatsuya v. AEON retail" (H21(wa)6775: Osaka D. C. Decision on Dec. 16, 2010 )


*1: JPO has been considering the possibility of covering a wider range of items including sound, colors and moving images, but a trade dress is not included in the items.


End of report

HIROTA, Miho
AIGI Intellectual Property Law Firm