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In what was a largely expected ruling, a district court judge in California yesterday denied Apple's motion for a preliminary injunction against Amazon attempting to bar the use of the word "Appstore" in conjunction with the Amazon Appstore.

The standard set for enforcing such an injunction is high - generally, the infringement on the trademark must be so clear that there isn't a genuine debate about whether or not consumers are likely to be confused, the infringement should be relatively obvious. Here, according the presiding judge, Apple failed to meet that burden, and was unable to establish any clear likelihood of confusion among consumers.

The trial date has been set for October 2012, so don't expect to hear much news about this legal battle for a while - unless it's about a settlement.


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.

  • Paul

    What Trial Date for October 2012? I thought the judge just ruled in Amazon's favor and hurt Apple. So what's going on in October 2012?

  • Joe

    Apple asked for an injunction which asked asked that Amazon Appstore be shut down untill the October court date.

    Todays decision just says that the Amazon appstore can still operate until a verdict is reached when they go to court.

  • JayMonster

    This is a pretty good indicator (though not perfect) that the judge feels that Apple is NOT likely to be victorious in court.

    • David Ruddock

      I have to disagree with you on that, Jay.

      The way this works is that for the preliminary injunction, while Apple is trying to show the same elements of trademark infringement as they would at trial, the bar is set much, much higher, and evidence discovery hasn't really begun. Preliminary injunctions are white elephants - it's very, very rare to see them issued in a trademark dispute, especially in the tech industry. CA courts are very sensitive to the damage these injunctions can do if issued willy-nilly.

      This says very little about the merits of Apple's claim - when it's fully developed at trial, there will be heaps more evidence to look at.

      It *does* mean that the infringement isn't absurdly obvious or a case of willful harm. So, it obviously means Amazon is no worse off.

      • JayMonster

        Thank you for the corrections, counselor. The one time when I probably should have been wordy, I was not.

        I did not mean that Apple would lose, but that it was not LIKELY (or as you say it is not absurdly obvious).

        Thank you for clarifying. But we agree (at least in my head) more than I think it first appears (my bad).

  • Elvis

    Didn't apple already try that on BB? They need to stop wasting people's money, cuz we all know THAT'S all they're trying to do.

    • http://www.theandroidvibe.com Troy

      Apple and Microsoft are actually cut from the same cloth: patent and IP trolls seeking to rob other companies blind.

  • Richard Yarrell

    Apple products are for losers

  • corey

    Rotten Apple...you rotten Apple!!

  • Mike

    Hey Dave...I thought the standard on the preliminary injunction, as updated by our very own supreme court in Winter v. Natural Resources Defense Council (2008), was a four-factor balancing test:
    (1) A likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the moving party’s favor; and (4) that an injunction is in the public interest.
    This replaced the likelihood of suuccess on the merits case standard prior and in lieu of that a serious question that makes the merits a fair ground for trial combined with a balance of hardships that tip decidedly in plaintiff’s favor (2nd Circuit).
    And isn't likelihood of consumer confusion that you speak of just one of the 8 polaroid factors the court uses in determining whether there is a trademark infringement? (which would speak to the likelihood of success on the merits factor above in determining the prelim injunction)
    Pepperdine?? geez ;) LOL JK! :)
    It will come down to whether Apple's App Store trademark is deemed valid...which I think it will be shot down as generic eventually...thus rendering the above case moot if it isn't settled by then.

    As an aside...dude...how awesome is studying law up on the cliffs of Malibu overlooking the Pacific? What an amazing campus!

    • David Ruddock

      Likelihood of confusion is actually not one of 8 factors - those 8 are the factors in determining likelihood of confusion. This is a commonly confused point. The 9th Circuit defined those factors in AMF v. Sleekwood way back in 1979, but in determining a preliminary injunction, there isn't enough evidence to complete that 8-factor analysis on anything but a cursory level. From the order:

      "The fourth factor – evidence of actual confusion – is neutral, since neither party has provided admissible evidence or considered this factor (which, in any event, is considered to be of diminished importance at the preliminary injunction stage.)"

      Thus, the judge is forced to decide likelihood of confusion without evidence of one of the most compelling factors - and all of the other factors are given a pretty surface-level treatment at the preliminary stage. Eg, strength of the mark - which is a key factor, and requires an "evidence-intensive inquiry" in order to make a determination. At this stage, Apple hasn't presented much evidence - nor has Amazon.

      The Winter v NRDC test is being applied, yes. But it's definitely not a 4-factor balancing test, it's a set of 4 elemental requirements - ALL of them must be met. Likelihood of success is obviously a huge burden in and of itself, and likelihood of irreparable harm is usually another difficult hill for corporate plaintiffs to surmount.

      If a judge can determine at such a preliminary stage that Apple has a likelihood of success on the merits, that means the infringement would need to be very obvious. Establishing that likelihood this early would be nigh impossible here, since the validity of the trademark itself is clearly a legitimately disputed issue at the very heart of the case.

      No judge is going to issue an injunction solely based on likelihood of success, but they absolutely can deny a motion to issue one if that likelihood isn't shown. The judge didn't even look at the other 3 elements here, because the first one wasn't met.

      Apple would need to show evidence that the other factors are all met, and I don't think they'd get past those hurdles, either. Particularly, showing that failure to order injunctive relief would result in irreparable harm would be pretty hard for one of the world's wealthiest companies to assert with a straight face. Again, the infringement would need to be pretty egregious for that to be true.

      I don't usually break down the law itself in my posts - most people don't appreciate that level of analysis and, frankly, it's kind of boring for most people to read.

      Don't worry, I took an extra semester of Civil Procedure, I know what's up. :P

    • David Ruddock

      Also, Malibu ain't half bad. It is a beautiful campus. It's a pretty boring place, though!

      I do appreciate the comment, I definitely had to refresh my memory on Winter v NRDC.

  • Mike

    Now that's a response! Well done! And much appreciated...