[E-trademarks] what counts as retail store services?

[Robert Reynolds]

That sounds like classic 035 retail services.

A “retail store” is just a place of business for reselling goods. There’s no requirement for the retail store to be run in a certain way (high school worker v. sole proprietor v. automated checkout machinery), or in a certain type (booth v. kiosk v. mall rental v. stand-alone building) to still be a “retail store” for our purposes. I would only have minor qualms about the method of provision of purchased goods, but if Nebraska Furniture Mart can be a “retail store” where I order goods for later pickup or delivery, I think your client should be fine.

Honestly, I caution you if your client just has a booth at a flea market or consignment shop. Those wouldn’t qualify as a “retail store” because (1) there’s not a steady supply of goods, and (2) the provision of flea market or similar would be something more like “Retail consignment stores in the field of {indicate specific field, e.g. clothing} in IC035.

Good luck, anonymous friend.

Bob Reynolds
Senior Counsel
Klintworth & Rozenblat IP LLP
2045 W. Grand Ave, Ste B PMB 84396
Chicago, Illinois 60612
direct 773.770-2554  fax 773.570.3328
rreynolds at kandrip.com<mailto:rreynolds at kandrip.com>
www.kandrip.com<http://www.rozenblat-ip.com/>

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From: E-trademarks <e-trademarks-bounces at oppedahl-lists.com> On Behalf Of Carl Oppedahl via E-trademarks
Sent: Monday, February 12, 2024 3:10 PM
To: for trademark practitioners <e-trademarks at oppedahl-lists.com>
Cc: Carl Oppedahl <carl at oppedahl.com>
Subject: [E-trademarks] what counts as retail store services?

A listserv member asks to post anonymously ...

Hypo: applicant has been selling its cowboy hats in a booth located in a general gift shop.  Applicant’s has signage promoting its cowboy hats prominently displayed above the booth.  The hats are made by others. If someone wants to purchase a hat, they purchase it at the gift store register.  Is the applicant providing “retail store services featuring cowboy hats” in IC 035? Would it make a difference if the applicant accepted payment at the booth rather than having the customer go through the gift shop register?  What it the applicant has no one onsite at the booth? If the applicant provides a means for the customer to view and purchase the goods and arranges for the processing of payment by the gift shop is that enough?

The explanatory note for Class 35 states that this Class includes, in particular:
the bringing together, for the benefit of others, of a variety of goods, excluding the transport thereof, enabling customers to conveniently view and purchase those goods; such services may be provided by retail stores, wholesale outlets, through vending machines, mail order catalogues or by means of electronic media, for example, through websites or television shopping programmes
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