If 'App Store' trademark is generic, so is Microsoft's 'Windows,' Apple argues - Page 4

Prices being driven to marginal costs is never a good thing for shareholders.

Just sayin'...

May you please provide a link that Microsoft does not have a trademark to the term "Windows"? The Microsoft site, indicate that it has actual trademark to "Windows" (the word), derivative Windows logos, and derivative terms (Windows 95, MS Windows, etc.) relevant to computers, operating systems and services.

Legally and technically, Microsoft did not win nor exactly lose the case against "Lindows". The companies settled, and if the Wikipedia article is correct, Microsoft paid Lindows to stop using the term "Lindows" and any reference of the term "Lindows" in any of the internet sites. As noted below, Lindows can be trademark protected. That Microsoft paid such a huge amount indicates that it might lose the case, in the final appeal or that the Lindows trademark owner would just be as tenacious, and dig in.

Small companies use this strategy sometimes to "blackmail" big companies. This is more even rampant in site name registration.


Note that the case was "Windows" vs "Lindows" -- two very different terms or words, which are considered different as far as Trademark law is concerned. So, the Lindows trademakr owner has a very strong case here.

Not that "_____ Windows" could not have been trademark protected, but that MS might have used its financial and legal resource to bottle the case. It might*** have been a different case result altogether if as the prior poster stated, if the "Lindows" use "_____ Windows" (a two-word term), especially if used in the context of computer operating systems. Microsoft would have a stronger case, but not guaranteed a sure win, especially if the opponent is tenacious. [Sometimes, they get settled, just like Apple has done with the use of IPad, or the simplified Apple logo in regard iTunes and music.]

In the same vein, "Apple Store" and "App Store" would be different terms, as far as trademark laws are concerned. The logos similarly created for each can be protected by trademark. Provided no one has stated a publick claim by placing the mark "TM" to claim trademark, or applied and got approved for the terms, or designs, then any one (individual, company or institution) can make a claim.

http://www.uspto.gov/trademarks/index.jsp

CGC

*** The key term is "might"

The fact that "it's an internet forum" doesn't absolve you of the decency to back up an assertion if called on it. Of course, there's no law that says you have to, but it certainly detracts from your credibility if you don't or can't.

People reading (and posting on) this "internet forum" are not stupid.

...the NoStore (for Nokia)

Oh snap!

You have not proved anything simply by pointing to a site, however official it is. Prove your point.

I will grant that we might have read the same link, but it is in the interpretation based on cases that were approved or rejected, or reconsidered, after a challenge, where the nuances of the law is manifiested.

Can you point to me actual cases that contradicted the terms I posted as not being able to be trademark protected?

One has to declare trademark protection by posting such intent (e.g., TM), or register for trademark protection for more systematic legal recourse, in case of disputes.

For example, I used in the prior post you responded to, three terms:

"FACEBOOK"? -- no one has challenged Facebook, so far.

'Apple Store'? - no one has challenged Apple so far.

"App Store" -- this is contested by Microsoft but it does not mean it would go in Microsoft's direction. We'll see how it goes.

But, however the case will go, do not forget that the reviewers and the council are human beings, too. Their decisions are affected by their perspectives, biases, just like the rest of us. Just consider the US Supreme Court decisions, or more politicized agencies, like the FCC, SEC, EPA in the US.

In this sense, laws are organic and may evolve. What is considered patentable or trademark protected may change. That is where precedence and most recent decisions make a difference. In the case of patents for example, there is a review of the prior wanton patenting of DNA sequences... that became vogue when DNA sequencing was relatively novel and expensive.

CGC

My point, as the original title indicated is the possibilitythat with your background and exprience, you could have enlightened us better, by citing actual cases, to refute or support the points your raised.

From my readings, more specifically of the US {Copyright], Patents and Registration is that they could be subject to interpretation. So, it is the precedence and more recent decisions, when disputes arise that clarify the nuances of the provisions in the Patnet and Trademark Act.




Just to be more correct, Copyright is not the same as Trademark. I do not recall any instance where a single word*** has been copyrighted (but it could be trademark protected, simply by declaring your intent to protect it (assuming there was no prior trademark protection), or register it for trademark protection -- to avoid legal issues of precedence on how first declared such intent.

The policies regulating Trademark registration, is more nuanced, and subject to interpretation.


CGC

Copyright is usually reserved for more complex organization of words, audio and.or images (articles, art work, music, books, mass media productions, films, etc.).

Before it was supplanted by the internet, Phone companies claimed copyright of the data in telephone directories, in an effort to quash competition for other "White and Yellow Pages". To my knowledge, the telephone companies lost the case. This loss did not contradict the fact that no one can reproduce the White and Yellow pages, as created by the telephone companies.

I didn't say that the time of the application doesn't matter, I said it in a specific context, that is to say it's irrelevant when the filing of the trademark occurred, once a term becomes commonly used in a generic way, the trademark loses protection.

So sure, "App Store" was in use prior to Apple filing, and used to describe an app store in the same context as Apple. However, right now, it's very commonly used in a generic sense, and that's what matters.


Once again, you're talking about things you really don't know anything about. Note that the search term was "App Store" in quotes. This gives a search, as I mentioned where not all results are relevant, but where you can clearly see "App Store" was in use before Apple filed. You asked for proof for that. I provide it. Heck in 1998, Apple registered the domain appstore.com.


Yes. Do the same search, but with an earlier time period (say up to 2005) to not conflict with Apple's App Store references. Take a look at he results with excerpts turned on, you'll see the date, and the context of the words "App Store" highlighted with the words in bold. If you click through, you'll see the current (or cached page) where the term may still occur, but keep in mind that the date of the page is when the excerpt was scrapped, so you may need to go to the Way Back Machine to view the page at the time.

But again, the issue is what is happening today, and that is, as you ignored in your response, people are searching for "App Store" (in quotes) as it relates to Android and others.


So, in your opinion, Microsoft could (without issue) call their store APPSTORE or Microsoft App Store if Apple does get a trademark registration for App Store? You'd be wrong if so. Sorry, but in your interrogation of JetLaw (who was correct about everything), you missed a fundamental point of trademark law, and that is it's supposed to prevent confusion.


Of course Apple has trademark protection for Apple Store. It's a registered trademark.


Wow, you're just wrong about everything. Apple Corp (owned by the Beatles) did claim infringement against Apple Computer and filed a suit in 1978. Apple Computer (later Inc) settled the suit by paying Apple Corp and agreeing not to enter the music business with Apple Corp agreeing not to enter the computer business. Apple Corp then sued for violation of the agreement in 1986, which caused Apple Computer to radically change hardware plans, and again there was a settlement involving cash being paid to Apple Corp in 1991.

The iTunes suit of 2003 was again not a trademark violation suit, but about breach of contract. Apple Computer won the case in 2006 and in 2007 then bought all "Apple" trademarks from Apple Corp and licensed back the Apple Corp name (and related ones) to Apple Corp.


Foolish? This is exactly what I was saying all along. See my first posts in this forum. Specifically, Microsoft couldn't trademark the name Windows to refer to glass panels, but can with the OS. That's why it's foolish to point to Windows being generic as a precedence, because Windows as an OS is not generic.


Really? I though we were deciding it here.

It's funny because you're wrong about everything, but when people point it out, you ask for proof. When given proof, you then make other false comments without citing anything yourself, so we can at least see where you're getting your incorrect information from. You're very hard to keep up with everything you're wrong about, but here it goes:


No, Apple even registered the domain appstore.com in 1998. Do a whois search. See other comments on how to search for other uses of "App Store" (with quotes) in Google with time bounded searches before Apple filed the trademark application.


Nope. It filed in the US in 1900, registered, but then lost. Likewise it was filed/registered in other countries (anywhere Bayer could) and either denied or lost. Pretty much Bayer lost the trademark due to war and generic use of the name *after* Bayer had coined the term. It's really an interesting read. See: http://en.wikipedia.org/wiki/History_of_aspirin


You're obviously confused about the difference between a copyright and trademark.


If a company creates a word, like Aspirin, they can expect to have the trademark registration to go through without opposition. However, if they start using a combination of words like App Store, that has been in use, in the exact same area of use, especially where both words are generic in the area of use, they can expect a serious fight over it (if there are interested parties like in this case).


No, Facebook is a combo word being applied to an area of different context from Face or Book. It's fine as a trademark for the same reason why Windows is fine as a trademark for an OS. App Store is, not only generically used and used before the filing, but it's a combo word of generic terms in the same area of use. Car Dealership wouldn't be ok for a Car Dealership, but would be ok for say a board game. See: http://www.bitlaw.com/trademark/degr...ml#descriptive
App and Store are generic and combining them has not only become generic, but it was descriptive to begin with.


No. If you name a business or a product and don't file an application for a trademark, it doesn't mean that you give up all rights to the mark. Even if you did give up your rights, another company must go through the trademark process and meet all of the requirements.


The poster said "creative' in the use of Microsoft for the word Windows as an OS, and that's not technically correct, but his point remains. And Microsoft and others have grounds to complain because App Store being trademarked by Apple means that others could not use the common and generic name that people have been using. See the reference in my other post. You have 3 million searches around "Android App Store" each month. Clearly there would be confusion if the search returned "no results found" as opposed to going to Android Market. Android, Microsoft, and others should have the right to market and promote their app stores.


No, the mark needs to qualify and not be in use (even if it hasn't been trademarked).


Google has become a verb, not a generic term. See cases filed against companies infringing on Google's trademark. Short answer, you can't launch your own website utilizing the name Google, just because it's become a verb. This is because there would be confusion between your site and Google. Now, if Google had tried to trademark Web Search, that would be a totally different story.

I think I've caught up. Is there anything else you said that I could show is incorrect?

Snore.

We've gone over this a million times in the previous articles. Apple just need to change the submission to "iOS App Store" and "Mac App Store" and there wouldn't be a problem.

Microsoft call their mobile shop the "Marketplace". They aren't going to start calling it the "Windows Phone App Store".

They just want to keep being able to use the "Web Apps" branding without Apple bringing the hammer down on them.


Next!

Damn, where's TechStud when you need him? .....

Maybe apps, appz or whatever may have been used forever and Apple isn't trying to trademark apps or appz. Apple is trying to trademark "app store" because there wasn't an app store until Apple created it and named it.

Really?

Tell that to Lindows.

Well, Face Book is a name certain colleges use for a paper publication that is given out to the freshman class. Zuckerberg made a digital version of this existing "face book" that was invented and coined by other people (indeed it was a generic term). I used the term "the face book" in college years before Zuckerberg started at Harvard.

Can it be trademarked? I suppose so, as a dot-com. Can pets.com be trademarked? I suppose so. Does that mean the words "pets" or "face book" can be trademarked? Nope.

Anyhow... App Store, it's in a slightly grey area. I think both sides have a lot of substance in this.

This is only one of the many places where you lose your argument. app and store were both generic terms UNTIL Apple put them together. Nobody was searching for app store anything until Apple opened one, named it and applied for trademark protection.

And why did Lindows (a linux distro) have to change their name after a bitter fight in the courtroom with Microsoft?

http://en.wikipedia.org/wiki/Microsoft_v._Lindows

actually it seems like it may not have held up in court but MS wouldnt want to take the chance...

Microsoft kept seeking retrial, but in February 2004, a judge rejected two of Microsoft's central claims[5]. The judge denied Microsoft's request for a preliminary injunction and raised "serious questions" about Microsoft's trademark. Microsoft feared that a court may define "Windows" as generic and result in the loss of its status as a trademark.

In July 2004, Microsoft offered to settle with Lindows.[6] As part of this licensing settlement, Microsoft paid an estimated $20 million US, and Lindows transferred the Lindows trademark to Microsoft and changed their name to Linspire.

That being the case, I assume the 'not stupid' people on this Internet forum would be in a position to call bs on any assertion which sounds fishy. Doesn't seemed to have happened just yet. At least not in this thread.

I've also done ip law as a student but where I live there is no overlap between copyright and trademark, so everything noted so far does not make a lot of sense. I say nothing. The ad hominen on this forum certainly discourages any attempts to back credibility.

Take a look at the Android based in car system SAAB has developed with an App Store.



Source

Amazon might be opening their Appstore for Android soon.

Apple better start getting some cease and desist letters out soon or their trademark claim will be dead.

Who had ever heard of the name 'App Store' before it came part of the iPhone???
No one.
It became common because of Apple's high selling iPhone.
Apple came up with it, so they ought to have the rights of the name 'App Store'.

Boom!

Boom! squared!

And who gets fat over all this, the Attorneys, the bottom suckers!

deleted

I believe Apple has been calling their programs "applications" for a long time. But in any case I agree with you since there are other generic term trademarks allowed, for example:

Container Store
Tractor Supply
Software Etc.
Radio Shack

I'm sure there are tons of them out there.

1) It doesn't matter. It's generic now. It's a victim of genericide.
2) Google does show use of "App Store" prior to Apple's filing. Apple's own use of it goes back to 1998 when they registered the domain appstore.com. The term "App" was used at least as early as the early '80s. The first use I could find was in the term Killer App to describe VisiCalc (1979). Store has of course always been used. A store that sells apps is going to descriptively be called an app store. Just like a store that sells groceries is going to be descriptively called a grocery store. Try trademarking Grocery Store.
3) Searches for "App" and even "App Store" show up in Google's logs before the filing of the trademark.
4) Significant results are found when searching for "App Store" where you can subtract apple, itunes, iPhone, iPad, iPod, etc...
5) Significant results are found when searching for "Android App Store" as well as others.

Bottom line is that this is about confusion in the market. A significant amount of people associate an app store with being a place where apps are sold than associate the App Store with the Apple brand. Specifically, more people search for app store associating with other brands than any other name or descriptive term. In other words, trademarking App Store would create more confusion as people don't know what else to search for or call it.

The term "app" goes back to at least the early '80s. The earliest use I saw was "killer app" used for VisiCalc, but other companies used "app" a long time ago. In 1998 Apple registered the domain appstore.com.

Your examples are off. Those stores are distinctive. Without a Radio Shack brand, did anyone ever think to go to a radio shack in terms of describing an electronics store?

A better example would be TV Store or Electronics Store.

An important point here is that you can file for a trademark for just about anything. You can claim a trademark simply by using adding the TM mark...Example However, the Registered mark means that it has to go through the whole process. Often marks go through and become registered because there was simply no opposition or obvious issue. Even then, they can become challenged.

So again in your examples, it's not so much that they absolutely qualified, it's that they went through without opposition or any other obvious issue. If there were stores that sold containers and were referencing themselves as container stores, they'd be able to file in opposition, or even challenge the registration (not that they have to, but they could).

In this case of App Store, there is opposition during the process.

Genericide may happen for extremely popular products but does not override the trademark see KLEENEX.

Searches for app are irrelevant to the discussion. A few searches for app store before Apple applied for trademark wouldn't be a trademark stopping problem either.

As for 4 and 5 since they occurred mostly after and by your admission are mostly for Apple products should help Apple get the trademark. Android has Android Market but unfortunately people always remember the most popular things when searching and may not get relevant results but they will get more descriptive as needed to find what they want, like searching for Android applications.

Right, and what did Kleenex have to do?

They almost lost the trademark due to genericide, and had to use the brand along with a descriptor. Thus it became "Kleenex brand tissues". This worked because Kleenex itself wasn't descriptive. Had Kleenex tried to trademark "tissues", they wouldn't have been able to of course, but they couldn't try to save the brand by promoting "Tissue brand tissues".

Same is true for "App Store". Apple can't use the brand with a descriptor because the brand they're going for is a descriptor. If they try to save "App Store" from genericide the way Kleenex did, they'd have to say, "The App Store brand app store".

And that would be... wait for it... CONFUSING. Which is entirely what trademark law intends to prevent.

Oh, and here are some words that lost their trademark specifically due to genericide:
Catseye, Cellophane, Dry ice, Escalator, Freeware, Heroin, Hoover, Kerosene, Lanolin, Laundromat, Linoleum, Mimeograph, Netbook, Petrol, Pilates, Primal Therapy, Thermos, Touch-tone, Trampoline, Videotape, Webster's Dictionary, Yo-Yo, ZIP code, Zipper

Aspirin could also be added to that list, but there were other issues regarding WWI and WWII.

Other brands had to take action, like the example I mentioned in my last post regarding Kleenex.

Sorry, but if you don't protect your trademark, and it becomes generic, you lose it.

It's entirely relevant and not a few. It's about 3 million searches month on Google alone regarding Android, and more for WP7, RIM, Nokia, Palm, etc... That's an indication that a huge number of people consider an app store to be an app store.


Point 4 and 5 show that significant results are found where Apple nor any other Apple product has anything to do with the result. This means both people are searching for app store as app store generically, and that people are finding results where app store is generically used.

It's not a popularity contest. It doesn't matter that Apple sells the most apps in its app store, what matters is that when people say app store, or search for an app store, a significant amount don't mean Apple's App Store.


Bingo. People will remember the most popular term...app store. If I'm searching for a Prius, but don't recall the name, I might search for Toyota or Car. I wouldn't search for BMW if I new the car I was looking for was a Toyota. Now, if Toyota had trademarked the name Car, it's confusing because BMW, Ford, Chrysler, GM, and others all sell cars.

And as 3 million searches indicate each month, people are looking for an app store for the Android, because app store, in their minds, is the description of what they're looking for.

Anyone want to place a bet on whether App Store goes through as a trademark for Apple without any settlement on lawsuits or oppositions?

Last time I checked (15 seconds ago) I was not a power within the Microsoft - in fact, I was not working for Microsoft at all - so I'm lucky guessing it has nothing to do with MS attempting to use it. As usual, I'm just stating my personal opinion.


... and likely get zillion calls from home owners asking for dual-glazing windows quotes...


So basically we would end up with App Store, Windows app store, Google app store (2nd and 3rd not being capitalized). What happens in case when, for any reason, all letters get capitalized (BIG SAVINGS IN OUR APP STORE ONLY THIS MONTH!!!)?

Indeed. They did have that spat with "Lindows".