20
May
amazon-app-store-app

Yesterday, in the Federal Court for the Northern District of California, Apple filed its response to a counterclaim (filed by Amazon) in its ongoing suit over Amazon's use of the word "Appstore" in its new Android... app store (what else am I supposed to call it, Apple? An app acquisition service?)

The counterclaim contained one of the single greatest premises for a trademark lawsuit I have ever seen (not that I've seen that many):

Apple denies that, based on their common meaning, the words “app store” together denote a store for apps.

- Apple, Inc., 2011

Now, from a legal perspective, this makes a bit more sense given what Apple is arguing (not to say that the merits of their case don't look shaky.) From a common sense perspective, this is one of the most hilariously backward things I (and I'm sure you all) have ever read.

What is Apple's legal argument? Basically, Apple owns a trademark to the phrase "App Store." This trademark was published for opposition (in short, certified) back in January of 2010 - well before Amazon's Appstore came into existence, and was probably little more than an idea with a project codename. In order to assert infringement, Apple (I'm way simplifying) needs to show that Amazon's use of those words is similar enough to the trademarked phrase that they might cause "confusion" between the two companies' products.

This argument is pretty easy to make - Amazon cutting out the space between "app" and "store" is probably not enough of a differentiator, the names still sound exactly the same. But Amazon's argument is, in essence, "who cares?"

Amazon is saying that (I'm definitely paraphrasing here) it would be an act of monumental stupidity to allow Apple to control that phrase, and I tend to agree. By showing the phrase is in common use, that it is generic, and that Apple has made no previous attempts to protect it from would-be infringers, Amazon wants the court to invalidate Apple's trademark as unenforceable with a declaratory judgment. That is what Amazon is counterclaiming (suing back in the same lawsuit) against Apple for.

Given the way in which the media and the population at large toss around the phrase "app store" in connection with the word "app," Amazon's argument seems to make sense. Apple's, on the other hand, would require the judge to circumvent common sense, and declare that an "App Store" is not, in fact, a store for apps.

We'll see how this plays out.

Justia, Bloomberg

David Ruddock
David's phone is whatever is currently sitting on his desk. He is an avid writer, and enjoys playing devil's advocate in editorials, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • Tensai

    I don't see where Apple could really claim that users would confuse the two stores. Yes they do both sell phone and tablet apps, but even if someone with an iphone went to the amazon appstore it should be pretty obvious that you can't get iOS apps there.

    • squiddy20

      "I don’t see where Apple could really claim that users would confuse the two stores." Especially when you put the source in front of app store, i.e. "Amazon appstore" and "iOS/Apple/Mac app store". I know I don't refer to any of Apple's stores simply as "App Store", especially now that they've got one for Mac and iOS.

      "...pretty obvious that you can’t get iOS apps there." I would just like to point out that this is (somewhat) changing. Quite a few iOS app developers are porting their apps to Android. Eventually, I think the differences between iOS and Android apps will be almost nil... (I hope anyway)

      • Someone

        You still can't get THOSE ;) apps there. You can get ports of THOSE applications, but not the applications themselves. It'll most likely be a cold day in hell when you can get official non-reviewed application access.

      • MicroNix

        The real point here is that Apple users looking for apps will not be able to purchase iOS apps at the Amazon appstore, therefore, Apple stands to not lose money over Amazon's use of these generic terms. Apple needs to be knocked down a few notches here...

  • Matt

    The ego of Apple has grown way too big.

    • Someone

      That's why I hate them now.

      When they were the under-dog vs. Microsoft, the company was very appealing. I simply couldn't afford to buy any of their stuff otherwise I would have.

      Now they are completely dead to me.

  • http://www.joshdale.net Josh Dale

    Well, if this all plays out and Amazon cannot use the phrase "appstore," what's next? Changing the names of shiny red fruits that grow on trees? Johnny Apple Inc.-seed?

    • http://DANGERISMYMIDDLENAME.COM Paul Danger Kile

      "Apple Computers" is the classic b-school example of trademark done right. If an Apple-the-fruit supplier used the name "Apple" then they could not defend it, because that very name causes confusion. Being a computer supplier with that name is defensible, because what computer company in their right minds would ever use it?

  • Joe T

    apple is patenting "grocery store" next...

    • Someone

      I would expect to find a restaurant inside it just because it can't possibly be selling groceries

  • L Boogie

    Wow!!! More groundbreaking news in utter nonsense next up, everyday words would also be trademarked by THEM and we would all be sued for using it in our daily lives. "good artists copy, great artists steal" quote their leader.

  • Johnny

    I hate Apple, but I assume they are going to argue that there is a double meaning in their usage: App(lication) Store and App(le) Store. So it's not exactly the same as grocery store.

  • Paulo Avelar

    I wonder how Apple managed to register the phrase "app store" at first.
    It's pretty much the same that happened with blu-ray, isn't it?

    Whoever developed it, tried to register as "blue ray" and failed.
    So with a little tweak, just taking out one letter and adding an hyphen, "blu-ray" came to life.

    If "appstore" and "app store" sound just like the same, what about "blue ray" and "blu-ray"?

    (as an act of teasing, amazon should rename the service to "apstor" and emphasize it's read just like Apple's App Store)

  • http://About.me/DarknesSx DarknesSx

    Seriously, EVERY time i hear about Apple lawsuits, it reminds of my little 2 & 4 year old brothers arguments when they fight.... Does anyone feel like that or is it just me?

    • http://DANGERISMYMIDDLENAME.COM Paul Danger Kile

      Absolutely. I remember reading of two lawsuits in a computer magazine back in the Windows 3 days. Apple was defending themselves against Xerox over the invention off the mouse and window. The other lawsuit was where MS was using the same exact argument to protect Windows. In one case Apple wanted it to use it, in the other case they wanted it to be unusable.

  • Mike C

    drugstore = store for drugs
    hardware store = store for hardware
    app store != store for apps

    WTF??? yeah, good luck with that argument there, Sparky...

  • http://www.slipshft.com Slipshft

    Strangely,Apple will probably win. In this litigious society, common sense that would say that there would be no confusion is not so common. Good luck to Amazon, Apple sit down and shut up! You are still making money, and we are not that stupid to confuse the names.

    • David Ruddock

      Courts have far more "common sense" than the media give credit for. Amazon's argument, coming from someone that at least has a minute (and I do mean minute) understanding of trademark law, is pretty solid. I really doubt if Apple will win this.

  • Andy

    apple should sue themselves for their Mac App Store name confusing people to the iTunes App Store...
    http://en.wikipedia.org/wiki/Mac_App_Store

    From PC World:
    Definition of: App Store

    (1) An online store for downloading applications. See online app store.

    (2) Apple's online store for downloading free and paid iPhone, iPod touch and iPad applications from third-party developers as well as Apple itself. Launched along with the iPhone 3G in 2008, the App Store is accessible from the mobile device, and it is integrated into Apple's iTunes software.

    Apple's definition is number 2, thus added at a later time than the first definition. You lose Apple!

    • Mark

      You may have hit the right note here, with no. 1: Amazon must prove that "app store", first used by Apple, has become so commonplace as a general use for "store for apps" that people no longer associate the expression specifically with Apple. Something like that happened to the word cellophane in the US or better still - the word telephone :) Perhaps Apple (and all others) should be prohibited from using the word phone without paying royalties?

  • ocdtrekkie

    Imagine how much money Apple is paying lawyers to state the apples are not apples and oranges are not oranges.

  • Someone

    How can it be confusing that an Android device does NOT use Apple's "App Store" ??

    For a start, the two markets look COMPLETELY DIFFERENT !

  • dougefresh91

    Does Apple's arrogance know no bounds?

    • Analog Spirit

      Apparently not...

  • Roland Deschain

    Oh, the irony. Has Apple forgotten, or simply ignored, that Amazon has been selling mobile software since before there was even an iPhone, much less an Apple App Store? (some companies sold their PDA software on Amazon before the iPhone existed)

  • Liz

    Steve Jobs is a troll

  • Analog Spirit

    This is getting ridiculous... Next thing you know, Apple are going to try to trademark the letter "i." I don't want to give them any ideas, tho.

    • Tyler

      Last i heard they have sued anyone that uses i-(insert anything).

      • Analog Spirit

        Wow, I didn't know that. That's crazy... But I'm not surprised.

  • lala

    Steve Jobs himself admitted that "App Store" is a generic term :

    "Well, what about Google? Last week, Eric Schmidt reiterated that they are activating 200,000 Android devices per day. And have around 90,000 apps in their App Store. For comparison, Apple has activated around 275,000 iOS devices per day on average for the past 30 days with a peak of almost 300,000 iOS devices per day on a few of those days. And Apple has 300,000 apps on its App Store.

    source:
    http://www.guardian.co.uk/technology/2010/oct/19/jobs-transcript-tablets-ipad-iphone-android

  • hyperdistortion

    Next week, Apple will attempt to patent the concept of "a device that can't make telephone calls", then sue anyone who makes such a product, claiming it's a copy of their iPhone 4...

  • http://www.battleballz.com Mat

    Apple are insane to think they can get away with it, I'm certain that the claim will be thrown out of court

    Josh Dale - Genius Avatar :)

  • Gogol

    Just in, read Apple response to Lodsys:

    http://www.engadget.com/2011/05/23/apple-responds-to-lodsys-infringement-accusations-says-develope/

    Apple defined "App Makers" = Application Developer.

    So, "App store" = Application Store !!!