The judge presiding over Apple's trademark infringement case against Amazon's recently launched Android Appstore says the iPhone maker will "probably" fail in its efforts to rename the Android store.
U.S. District Judge Phyllis Hamilton said Apple has had trouble showing "real evidence of actual confusion" in the marketplace over Apple's iOS App Store and Amazon's Android Appstore, as reported by Bloomberg BusinessWeek.
"I'm troubled by the showing that you've made so far, but that's where you're likely not to prevail at this early juncture," Hamilton said, adding that she would review court documents before issuing her final decision on Apple's motion.
In the lawsuit, first filed in March, Apple argued it has spent substantial sums promoting its App Store service, and that the brand's value would be irreparably harmed by being associated with Amazon's store.
Amazon responded to the suit by arguing that the "app store" term has become generic and legally unprotectable through broader usage by sources including Apple co-founder and CEO Steve Jobs.
I don't see it as being too generic. After all is "Q-Tip" too generic or "Dry Ice", "Petrol", or "Video Tape". The fact is Apple is the one who made "App Store" a generic term. Before they used it in the context of the iPhone it was not a generic term. On top of that, what is the point in filing a trademark at all if it will be stripped away if it becomes a standard term.
Since Apple owns the trademark (since 2008) Amazon should rename their store.
Joseph, the word/term "app" is at least couple of decades old. The word "store"? No issue there at all. The two words put together is very generic.
Plus no one owns the words "dry ice", "petrol", or "video tape". "Q-Tip" is defiantly a trade mark as it was never a word before the Q-Tip company made it one.
How old the individual words are doesn't matter. If a trademark is allowed to be acquired, then it should be enforced. If people shouldn't be able to own generic old words, even in combinations they created, then they shouldn't be allowed to trademark it to begin with. Now generic the term has become shouldn't be relevant at all.
If people want to be able to use the term App Store, they should either get permission, or get the trademark revoked. Claiming that the trademark is invalid just because the term has become commonly used is a load, and should then be grounds for Q-tip, Kleenex, etc. to be valid for anyone's use.
You are right. But this is also part of the Trademark process/responsibility. It is the trademark holder's responsibility to create a unique mark and enforce it. But it is also their responsibility to fend off any challenge to that mark. That is what is happening here.
Apple is both on the offensive and defensive with regard to the "Appstore" mark. They must prove that their trademark is valid and unique for their market in order to defeat Amazon. If they cannot do that, they will lose it.
Simply being granted a trademark is not a valid defense when that mark is challenged. Many things get trademarked that are not really unique. The lack of a challenge does not validate the mark.
Honestly the genericity of the name Appstore is probably not the major point in the legal battle, and I think there is precedence that Appstore isn't so generic of a mark that Apple would loose on this grounds. The problem is that genericity of a mark isn't the only thing considered in the validity of a mark, and even when a mark is granted it doesn't automatically entitle the owner to complete control over all it's uses.
Consider Windows. Any software or OS that calls itself Windows will get challenged by Microsoft and likely loose, yet you can go to the hardware store and ask for Windows and you will not be getting the latest and greatest Microsoft product; similarly Target/BestBuys won't be asking you if you want single or double hung. The reason this trademark is considered valid is because there is no confusion between uses of the word.
The judge is making this very same argument with the use of the Appstore mark. While it seems true that Apple popularized this term, I agree with the judge in that there is very little confusion between the Amazon Appstore and the Apple Appstore due to Apple's lock-everything-down nature. Now, if amazon made an app, called it Appstore and distributing it on your iphone that might be a different story, or possibly even if they sold iPhone apps through its Appstore, however as it currently stands these stores do not service the same platforms and the result of this is separate and distinct markets.
The issue isn't for using "App", it's for using "App Store" which is, I believe, trademarked. If Amazon has infringed on the trademark, then they should lose. If they haven't, then Apple should. How long the word "App" has been around, or other uses for it, have nothing to do with the court case in the article.
Side A: Its a generic term made up of two generic words
Side B: But they trademarked it already.
Side Me: This fault is down to apples own inconsistency. Steve Jobs has referred to the app store as a generic term himself, the man who basicaly is apple has used it in a sense of the generic combination of two words. THAT is what has defeated this court case. Its like going "Hey I made this cake for everyone." Then when somebody takes a slice going "NO MAI CAKE!!!"
Sorry, i'm hungry. Anyway, as I was saying if apple had indeed acknowledged it as a trademark themselves in the past, rather than being wishy washy over the entire situation then this wouldn't be a problem. Even in early adverts they refered to is as "Iphones app store" or words to that effect.
Honestly I believe that apple would have better luck trademarking the prefix i in terms of electronic software and hardware. THAT is something they'd be able to defend as you automatically think apple when you hear iphone, ipod, itunes. And in this situation I have seen other companies using the i prefix, alon with similar packaging to hop on apples success. That is something trademarkable. Appstore is not.
"Apple argued it has spent substantial sums promoting its App Store service, and that the brand's value would be irreparably harmed by being associated with Amazon's store."
I'm really trying my hardest to feel pity, but I think I just _can't_. Odd.
Lots of people have been given silly trademarks. The term "lets get ready to rumble" is trademarked. Whether you like Apple or not, I don't blame Apple for issuing the lawsuit. They were given the trademark after all. If Apple's claim is not enforced, it will be more a reflection of the US patent office giving trademark status to something they shouldn't have.
But if a word falls into regular use and becomes genericized then it can be declassified as a trademark and can be stripped away it's happened to many companies before this, thermos is the first one that comes to mind. App store is genericized these days
Since Apple owns the trademark (since 2008) Amazon should rename their store.
Plus no one owns the words "dry ice", "petrol", or "video tape". "Q-Tip" is defiantly a trade mark as it was never a word before the Q-Tip company made it one.
If people want to be able to use the term App Store, they should either get permission, or get the trademark revoked. Claiming that the trademark is invalid just because the term has become commonly used is a load, and should then be grounds for Q-tip, Kleenex, etc. to be valid for anyone's use.
Apple is both on the offensive and defensive with regard to the "Appstore" mark. They must prove that their trademark is valid and unique for their market in order to defeat Amazon. If they cannot do that, they will lose it.
Simply being granted a trademark is not a valid defense when that mark is challenged. Many things get trademarked that are not really unique. The lack of a challenge does not validate the mark.
Consider Windows. Any software or OS that calls itself Windows will get challenged by Microsoft and likely loose, yet you can go to the hardware store and ask for Windows and you will not be getting the latest and greatest Microsoft product; similarly Target/BestBuys won't be asking you if you want single or double hung. The reason this trademark is considered valid is because there is no confusion between uses of the word.
The judge is making this very same argument with the use of the Appstore mark. While it seems true that Apple popularized this term, I agree with the judge in that there is very little confusion between the Amazon Appstore and the Apple Appstore due to Apple's lock-everything-down nature. Now, if amazon made an app, called it Appstore and distributing it on your iphone that might be a different story, or possibly even if they sold iPhone apps through its Appstore, however as it currently stands these stores do not service the same platforms and the result of this is separate and distinct markets.
Anyone ever hear the term "killer app"? That's been around since the 80s, and more recently, generic terms such as "smartphone apps" has been used.
Side A: Its a generic term made up of two generic words
Side B: But they trademarked it already.
Side Me: This fault is down to apples own inconsistency. Steve Jobs has referred to the app store as a generic term himself, the man who basicaly is apple has used it in a sense of the generic combination of two words. THAT is what has defeated this court case. Its like going "Hey I made this cake for everyone." Then when somebody takes a slice going "NO MAI CAKE!!!"
Sorry, i'm hungry. Anyway, as I was saying if apple had indeed acknowledged it as a trademark themselves in the past, rather than being wishy washy over the entire situation then this wouldn't be a problem. Even in early adverts they refered to is as "Iphones app store" or words to that effect.
Honestly I believe that apple would have better luck trademarking the prefix i in terms of electronic software and hardware. THAT is something they'd be able to defend as you automatically think apple when you hear iphone, ipod, itunes. And in this situation I have seen other companies using the i prefix, alon with similar packaging to hop on apples success. That is something trademarkable. Appstore is not.
I'm rambling now, so CAEK
I'm really trying my hardest to feel pity, but I think I just _can't_. Odd.