Can a source identifier not be entitled to protection?

Can something serve as a source indicator in the trade mark sense, but not enjoy any legal protection? The question occurred to this Kat last week. In the run-up to the glorious 10th anniversary IPKat event in London (thanks to Jeremy and the other Kats, to Allan & Overy, and to the great audience), this Kat took a day to stay in a London neighbourhood that he had heretofore never explored—Notting Hill. Walking along one of its main streets--Westbourne Grove -- he and Mrs Kat darted in and out of art galleries and various small shops, until his feline eyes spotted a corner building at the corner of Portobello Road (of Market fame) and Westbourne Grove that seemed to be a reconverted warehouse (in fact, it was once an antiques market). The facility was now a clothing store, but the clothing wares were more suited for his grandchildren's generation.

The thing, though, that caught his attention was the display window of the building. There he found multiple rows of old sewing machines (apparently reaching back over 100 years), many bearing the iconic mark SINGER from that period. Curiosity being a feline trait, this Kat decided to enter the store and learn more. It turns out that the store is part of the AllSaints clothing chain, which includes both department store locations and stand-alone retail stores and which spans several continents from its flagship store in Spitalfields in London.

Kat readers are free to accuse this Kat of profound consumer ignorance—(nearly) everyone but he apparently recognizes the AllSaints name as a purveyor of, as described by Wikipedia, " … sharp edge, directional clothing with a muted palette dominated by blacks, browns, whites and grays. In reviews by fashion and style critics, AllSaints' clothes have variously been described as "British chic rock 'n' roll", a "romantically pre-aged look ... that evokes the past and a post-apocalyptic future." However, these are hardly the kind of sartorial styles that grandfathers are wont to wear, and the sight of a granddad wandering through the store must have been viewed with some amusement by both staff and patrons.

Engaging a pleasant salesperson in conversation, this Kat was not able to learn much more about the collection of sewing machines in the window, except to be told that such a display was found in many company stores, and that the company's store sites "are widely identified with the display of sewing machines." This observation is confirmed by Wikipedia—"The company's retail stores are best known for the exposed brick, weathered wood and metal in their interior and the large exterior wall of antique sewing machines that often frame their entrance."

This Kat has to admit—he does not have any memory of "exposed brick, weathered wood and metal in [the] interior" of the store and, if he did have such a memory, he would not likely connect it with the AllSaints clothing stores. The sewing machine collection is a different matter. This Kat assumes that there are other collections of sewing machines in museums and the like. But without a recollection of any specific sewing machine, this Kat now associates the collective visual impact of row after row of sewing machines in the outer windows (and also an array of sewing machines in the interior of the Notting Hill store) with AllSaints stores. In other words, at least for this Kat, it has come to serve as a source identifier, the pith and marrow of trade mark protection.

And so, the trade mark question: As best as this Kat has determined, the collection of sewing machines has not been registered as a trade mark/service mark of the company. Assuming this to be the case, would it be at all possible to do so? Obtaining trade mark protection for a three-dimensional mark is challenging, but the difficulty usually lies in the fact that the three-dimensional object may be viewed as functional, serving as the container for a liquid product, rather than serving a source identifier (think of a bottle of perfume). In our situation, however, the three dimensional objects are not functional in that sense. True, a single sewing machine is quintessentially functional, but what about a multiple-row array of old sewing machines placed in a display window? Based on this Kat's anecdotal experience, such an array is certainly capable of serving as a source identifier, i.e., as a mark. But if so, how would one go about seeking to register the mark and, in particular, what would be the depiction of the mark? After all, the exact contents of the array presumably change from store to store, window to window. Even within a display, it is possible that the various sewing machines displayed will change over time. As such, this Kat finds it difficult to conceive of the circumstances by which the array could be registered.

If so, then perhaps the only avenue for protection is under some form of claim for passing off/unregistered trade mark/common-law trademark/unfair competition, with all of the challenges in establishing the exact sign that is to be protected (given that the array differs from display to display) and the requisite goodwill. Or perhaps the ultimate result is tha,t while such an array of sewing machines serves as a source identifier, no recognizable form of legal protection is available—an odd result indeed.