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Is Target Seeing Red Over J.C. Penney’s New Look?

Posted in Copyrights, Sight, Trademarks

–Catlan McCurdy, Attorney

When I moved to Minneapolis four years ago, I mentioned in passing that there was a noticeable lack of Wal-Marts in the suburbs surrounding the Twin Cities. I don’t have a particular affinity for shopping at Wal-Mart, it was just a casual observation. Still, the friends I was with at the time gasped. Eyes wide and incredulous, one said, “Don’t you know? This is Target town.”

It was my first taste of the overwhelming loyalty that Target commands in the Twin Cities.

Still, anyone who has been to a Target even once, in any city, can immediately tell you the biggest difference between Target and other big box retailers – it’s the shopping experience. Target has softer lighting, better music, aesthetically pleasing store displays, efficient check-out procedures, and an adorable puppy with a red bullseye around one eye. And now, that experience may be coming to a J.C. Penney’s near you. Except for Spot, he’s staying with Target.

JCP now has two former Target execs working in tandem to revamp the department store’s brand. In October 2011, Target’s Chief Marketing Officer, Michael Francis, left Target to become the new President of JCP. He reports to new CEO, Ron Johnson, who most recently left Apple, but previously served as Vice President of Merchandising for Target for fifteen years. At that time JCP said that the recent management changes wouldn’t be impacting the company’s core business model. Hmm, not so sure about that. Since Johnson’s move to JCP, the company has done nothing but change.

Earlier this year, JCP launched a new logo and picked a new spokesperson, Ellen DeGeneres. Our guest blogger, Ellie Drotning, blogged about these changes here. Recent television ads featuring Ellen debuted during the Oscars coverage this past Sunday. Whether the ads are quirky enough to be compared to Target ads is a discussion we can leave for another day. The ads were certainly entertaining, and I’ll agree with Ellie, who doesn’t love Ellen?

Aside from the internal changes at both the corporate level and sales floor level, JCP is changing the exterior of its stores. And that’s what really interests me. We’re talking possible copyright  and/or trade dress infringement here, people.

On September 30, 2011, JCP celebrated the opening of a newly designed store in Timber Creek Crossing, Dallas, TX. Images of the new JCP look have finally begun to spread, and I couldn’t help but think of Target.  Take a look at the images of the new JCP and a Target storefront below. Do you see a similarity in building design?

If Target did decide to take action against JCP, it might choose one of two routes: copyright or trade dress infringment. Target can easily avoid the Yankee Candle problem with a copyright infringement case as the work is a stand-alone building, and not a store within a larger building (e.g., a shopping mall). And as for trade dress, I’ll leave it up to the readers, and any Target loyalists, to decide if there is a likelihood of confusion here. Thoughts?