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Microsoft complains font is too small on Apple "App Store" trademark brief - Page 2

post #41 of 72
3/9/11 at 10:03pm
Quote:
Originally Posted by AppleInsider View Post


The case will be decided by U.S. Patent and Trademark Office's Trademark Trial and Appeal Board.

I hope the USPTOTTAB (ouch, what an acronym) refuses their application for not complying with their Application Guidelines (uh, I meant their brief for not complying with their trademark briefs guidelines, of course )...

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post #42 of 72
3/9/11 at 10:07pm
Quote:
Originally Posted by Apple ][ View Post

If MS thinks that it can trademark "Windows", then Apple can trademark "App Store".

I think the Judge should give this point to Microsoft, then we can watch the Microsoft App Store drown into oblivion... Arguing about it just makes publicity for Windows Phoney...

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post #43 of 72
3/9/11 at 10:46pm
If Apple had applied for a trademark of Application store Microsoft would have stood a chance. App store is a different story altogether.
Microsoft deserves to loose and be forced to pay Apples legal costs.
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post #44 of 72
3/9/11 at 11:14pm
Quote:
Originally Posted by Dr Millmoss View Post

Just the idea of a required font size and number of pages for legal briefs is a comic concept. I wonder, do they also have one for font style, leading and tracking, margins, headers and footers?

IANAL, but I am a law student, and the rules of filing paperwork vary with the court in which you're filing. Margins, spacing, font size, typeface, page numbers, page limits....these all matter. Some courts will just blanket reject things you file that don't conform to their requirements. It seems silly that Microsoft is contesting this, but it's likely valid (again, depending on the court in which the parties are filing the briefs).

I'm actually surprised to hear that Apple's legal team would file something that's six pages longer than the limit and potentially has a smaller font than what's allowed. I haven't read the briefs in this case, but I'm hard-pressed to think of a situation in which Apple would need more than 25 pages to explain their position, especially if the court has a VERY generous minimum font allowance of 11pt font. Some of the courts in my jurisdiction require 14pt font, which is annoyingly large.
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post #45 of 72
3/10/11 at 12:18am
Don't these people have anything better to do with their time?
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post #46 of 72
3/10/11 at 1:04am
Quote:
Originally Posted by dotnsk View Post

IANAL, but I am a law student, and the rules of filing paperwork vary with the court in which you're filing. Margins, spacing, font size, typeface, page numbers, page limits....these all matter. Some courts will just blanket reject things you file that don't conform to their requirements. It seems silly that Microsoft is contesting this, but it's likely valid (again, depending on the court in which the parties are filing the briefs).

I'm actually surprised to hear that Apple's legal team would file something that's six pages longer than the limit and potentially has a smaller font than what's allowed. I haven't read the briefs in this case, but I'm hard-pressed to think of a situation in which Apple would need more than 25 pages to explain their position, especially if the court has a VERY generous minimum font allowance of 11pt font. Some of the courts in my jurisdiction require 14pt font, which is annoyingly large.

There is a standard Blue Book format but most courts do not require strict adherence to it or have their own local rules with minor variations. Format requirements become more strict at the appellate level... one reason being a standard strict format prevents a side from distorting information visually in much the same way that say.. voting pamphlets are prone to do.

That being said, in bench hearings especially where the judge is presiding over a case in its first instance, unless its a gross departure from the norm conventions such as page limit and font size can be waived. Moreover, in a full brief the captions, summaries, fact recitation, and points and authorities can account for quite a number of pages before getting to the real crux of the legal analysis and argument.

This kind of knit-picking by MS lawyers though is a pretty useless move... it essentially signals the opposing counsel that no leeway should be given in the future with respect to continuance of deadlines and any number of even more petty legal minutia. Anyone making that move better be prepared to deliver timely and flawless legal representation at every stage of the litigation. And not to say the least... violation of local format rules is often an issue for the Judge (i.e. their judicial clerk) to point out. I.e. it's waivable at the court's discretion and hardly a strict compliance issue.
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post #47 of 72
3/10/11 at 2:09am
Quote:
Originally Posted by dotnsk View Post

IANAL, but I am a law student, and the rules of filing paperwork vary with the court in which you're filing. Margins, spacing, font size, typeface, page numbers, page limits....these all matter. Some courts will just blanket reject things you file that don't conform to their requirements. It seems silly that Microsoft is contesting this, but it's likely valid (again, depending on the court in which the parties are filing the briefs).

I'm actually surprised to hear that Apple's legal team would file something that's six pages longer than the limit and potentially has a smaller font than what's allowed. I haven't read the briefs in this case, but I'm hard-pressed to think of a situation in which Apple would need more than 25 pages to explain their position, especially if the court has a VERY generous minimum font allowance of 11pt font. Some of the courts in my jurisdiction require 14pt font, which is annoyingly large.

Being a lawyer, tables of contents and table of authorities are quite common. They do not count towards the page limit. So Apple should be fine. I also checked the font by converting the court doc to Word and it appears to be Times New Roman at 11 point font. Most people do not file such complaints, at least in my years of working and I've seen a whole lot worse.
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post #48 of 72
3/10/11 at 2:25am
Did Google register Goggles ?
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post #49 of 72
3/10/11 at 3:22am
Quote:
Originally Posted by dualie View Post

I definitely think Microsoft has a point. And if Apple didn't follow the rules in its brief then it really should know better than to try and pull a fast one.

Seeing as it's not the court that took issue with formatting and length of the (not so) brief, but Microsoft's lawyers, my guess is that Apple's legal team did it intentionally, as a kind of "f*ck you" to Microsoft's team.

Quote:
Originally Posted by Eriamjh View Post

Apple's brief was not very brief.

LOLz.

I've noticed also, that "apps" didn't exist until Steve started talking about iPhone apps and the "App Store" when it was originally introduced. Now, it seems, "applications" no longer exist. Everyone is instead talking about "apps". But even so, the armchair lawyer in me thinks that Apple should be allowed to keep the "App Store" trademark, 1) Because Apple first introduced the "App Store" several years ago, and 2) If Microsoft can trademark "Windows", then Apple should be allowed to trademark "App Store".
Then again, it's silly that Microsoft was allowed to trademark "Windows" in the first place. But, because they did, it's legally consistent that Apple be allowed to keep "App Store". I think it'll be tough for Microsoft to win this case.
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post #50 of 72
3/10/11 at 4:03am
They're arguing on what seems to be a 'technicallity': that means they have no real argument and are desperate?

Next, they'll complain that the text wasn't in Arial
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post #51 of 72
3/10/11 at 4:09am
So, now it's official!

Microsoft is really Psystar in disguise!


Macintosh: It just WORKS!
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post #52 of 72
3/10/11 at 4:11am
Quote:
Originally Posted by Gary54 View Post

Don't these people have anything better to do with their time?

As if picking pockets hasn't kept them busy enough for the past 25 years.


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post #53 of 72
3/10/11 at 5:10am
Quote:
Originally Posted by Damn_Its_Hot View Post

That was my thought exactly - resubmit it in an ultra light condensed font with custom kerning tables to suck out all but the tiniest space out and reduce the leading to 0 between lines and 1 at paragraphs! Or submit the entire thing in the old Cairo font!

Comic Sans in pretty rainbow colors!!
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post #54 of 72
3/10/11 at 5:15am
Quote:
Originally Posted by Jonamac View Post

It does smack of pettiness somehow though.

Not really. Microsoft have pumped a stupid amount of money into branding their "Web Apps", that is, the lightweight web version of existing full features programs.

If the term "App Store" is deemed to not be generic, and to be the property of Apple, the Apple will be able to cause a certain amount of pain for Microsoft wherever they refer to "Apps" (specifically their "Web Apps" branding)

It's not like Microsoft want to create the "Windows App Store" or to prevent Apple from using the term "App Store", they are just protecting their own "Web Apps" branding.

I'm surprised that Google haven't complained. If Apple owns the term "App" then Google's "Google Apps" branding will be well and truly eff'ed up.
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post #55 of 72
3/10/11 at 5:41am
Quote:
Originally Posted by fib View Post

Did Google register Goggles ?

Yes, you must now call them eye-cover-thingies, unless you're cool with giving Google your first and second born children.
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post #56 of 72
3/10/11 at 6:39am
Steve Jopbs has publicly referred to other application marketplaces using the term "app store." That is a pretty compelling argument that even Jobs himself views the term as generic and I think that will be a VERY difficult hurdle for Apple's lawyers to overcome.
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post #57 of 72
3/10/11 at 7:02am
Quote:
Originally Posted by quinney View Post

Apparently, the US Senate is working on changes to patent law. Maybe things will get better.

With all due respect quinney...

The US Senate might makes things better? Really? I guess there's a first for everything...

<-- Insert the sounds of crickets chirping here -->
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post #58 of 72
3/10/11 at 8:51am
And Mr. Bill Gates is a philanthropist? Yeah, ok.

http://www.nlcnet.org/reports?id=0034#daylife


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post #59 of 72
3/10/11 at 9:04am
Microsoft is a crotchety old man.
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post #60 of 72
3/10/11 at 10:14am
Quote:
Originally Posted by Mister Snitch View Post

Quite right. For that matter, the first Supermarket probably should have trademarked that term. All the other big markets would have had to call themselves 'big markets', and would have always sounded a notch below.

Trademarks, even where unique to the user at the time of creation, can become generic over time. Aspirin, for instance, used to be trademarked by Bayer and only Bayer could sell Aspirin brand acetylsalicylic acid. Over the years, however, Bayer was lax in protecting the mark and the term become widely used among the populace for all acetylsalicylic acid painkillers. Eventually Bayer lost the mark. Now everyone can sell their product as Aspirin. Xerox faces the same problem today, as does BandAid, Lycra, and many others, and you can bet these companies spend a lot of money every year to make clear that there marks represent only their products.

Apple, on the other hand, has done everything they can to rebrand "applications" as "apps" and other companies have followed suit. If this does go to trial and unless Apple can put forth lots of evidence that they have gone to lengths to distinguish their "App Store" brand from other online application download stores, they will probably lose this battle.

So, long story short, even had someone trademarked "Supermarket" all those years ago, they probably would've lost it by now.
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post #61 of 72
3/10/11 at 12:25pm
I can't believe there is even any debate about this. Apple does not have the right to trademark the name "App Store." The word "app" has been around for decades. It is a generic noun. Look it up in the dictionary. And combining it with the word "Store" to name a store where they sell apps is not unique or novel. They should have no exclusive right to that term as a name for their app store.

Apple's move is akin to trying to trademark the term "Shoe Store." And despite some of the earlier claims in this thread, you cannot trademark something like "Shoe Store" even if you open the first one. Now if you, for example, decided to open a restaurant called "Shoe Store," than you probably could make a case that you deserve the exclusive right to the name "Shoe Store" when it comes to restaurant names, assuming no one else has been using that name for their restaurant. Trademark law is all about context.

Comparing this to the "Windows' trademark demonstrates a lack of understanding for what makes a trademark a trademark. Yes, the word "windows" has been around a very long time and it is a generic term when used in its traditional sense, but using it as the name of an operating system was unique and novel. And so Microsoft rightfully earned the exclusive right to call their operating systems by that name. Just like McDonalds has earned the exclusive right to call its restaurants "McDonalds," despite the generations of people who went by that name for centuries before McDonalds the restaurant came to be.
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post #62 of 72
3/10/11 at 12:36pm
Quote:
Originally Posted by dualie View Post

I definitely think Microsoft has a point. And if Apple didn't follow the rules in its brief then it really should know better than to try and pull a fast one.

I mean, OK, let's swing with the whole arrogance thing here and pretend that the Apple legal arrogantly submitted their response in controversion to accepted practice and guidelines. Any idiot lawyer worth the fees knows you don't arbitrarily ignore standards and practices when you are defending a challenge. Microsoft is trying desperately to throw anything it can under the Apple locomotive to impede progress. This filing is an excellent example of that as was called out.

I know, you're not a lawyer but you slept at a Holiday Inn last night - right?
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post #63 of 72
3/10/11 at 12:44pm
Quote:
Originally Posted by johntosa View Post

I can't believe there is even any debate about this. Apple does not have the right to trademark the name "App Store." The word "app" has been around for decades. It is a generic noun. Look it up in the dictionary. And combining it with the word "Store" to name a store where they sell apps is not unique or novel. They should have no exclusive right to that term as a name for their app store.

Apple's move is akin to trying to trademark the term "Shoe Store." And despite some of the earlier claims in this thread, you cannot trademark something like "Shoe Store" even if you open the first one. Now if you, for example, decided to open a restaurant called "Shoe Store," than you probably could make a case that you deserve the exclusive right to the name "Shoe Store" when it comes to restaurant names, assuming no one else has been using that name for their restaurant. Trademark law is all about context.

Comparing this to the "Windows' trademark demonstrates a lack of understanding for what makes a trademark a trademark. Yes, the word "windows" has been around a very long time and it is a generic term when used in its traditional sense, but using it as the name of an operating system was unique and novel. And so Microsoft rightfully earned the exclusive right to call their operating systems by that name. Just like McDonalds has earned the exclusive right to call its restaurants "McDonalds," despite the generations of people who went by that name for centuries before McDonalds the restaurant came to be.

You are unfamiliar with the process and the law behind it - and that's all I'm going to dignify this post with...
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post #64 of 72
3/10/11 at 1:14pm
This is really a good read. The attorney's bring up some good points.
I find it interesting that the document also includes a screen shot of copyrighted material that was cited but not authorized or citied as being used with permission. The photo's of the Register Traded marked iPhone is also used written permission. So what's a guy to do?
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post #65 of 72
3/10/11 at 1:32pm
Quote:
Originally Posted by fecklesstechguy View Post

You are unfamiliar with the process and the law behind it - and that's all I'm going to dignify this post with...

Well, I guess this is where I say "No, YOU are unfamiliar with the process and the law behind it - and that's all I'M going to dignify this post with..."

We're simply having a discussion on the topic. I don't see why you even bother to post if that's all you have to offer. Please make your case if you have one.
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post #66 of 72
3/10/11 at 2:45pm
Quote:
Originally Posted by frugality View Post

You can't trademark the name "Grocery Store" or "Department Store."

You shouldn't be able to trademark the name "App store."

Might as well fight ridiculousness with ridiculousness. Go Microsoft.


Edit: Can I legally change my name to App Store?

How 'bout App L. Store?

It is generic but there are tons of trademarked generic names like "The Container Store" and "Public Storage"
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post #67 of 72
3/10/11 at 7:51pm
Quote:
Originally Posted by johntosa View Post

Well, I guess this is where I say "No, YOU are unfamiliar with the process and the law behind it - and that's all I'M going to dignify this post with..."

We're simply having a discussion on the topic. I don't see why you even bother to post if that's all you have to offer. Please make your case if you have one.

Well I can say that too. "No, YOU are unfamiliar with the process and the law behind it - and that's all I'M going to dignify this post with..."

Your post was utterly bereft of justification that hasn't already been identified as broken and ineffective over the past couple weeks and at least two other threads on this board. Just because you don't like it doesn't mean it isn't legal. EVERY trademark is "obvious" to somebody that might not like it, that doesn't make them right either.

Established trademarks (maybe some are expired, but they were in use for awhile)

Save Mart - both components are derived from trivial common nouns

K Mart - both components are derived from trivial common nouns

Tiffany's - just a Name that was already used by someone else in business before!

Penny's - either a trivial common noun or a name

Three-Peat - both components are derived from trivial common words

Snickers - a common word for a small laugh

Da Bears - both components are derived from trivial common words (it wasn't even trademarked by the original creators!)

New York Times - a proper nouns and a common word

Wow, all that. Widely understood to be valid by anyone, yet so generic and basic. Yeah, you're the shiznit. Ooops, that may be trademarked too.
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post #68 of 72
3/11/11 at 6:01am
Quote:
Originally Posted by Hiro View Post

Well I can say that too. "No, YOU are unfamiliar with the process and the law behind it - and that's all I'M going to dignify this post with..."

Your post was utterly bereft of justification that hasn't already been identified as broken and ineffective over the past couple weeks and at least two other threads on this board. Just because you don't like it doesn't mean it isn't legal. EVERY trademark is "obvious" to somebody that might not like it, that doesn't make them right either.

Established trademarks (maybe some are expired, but they were in use for awhile)

Save Mart - both components are derived from trivial common nouns

K Mart - both components are derived from trivial common nouns

Tiffany's - just a Name that was already used by someone else in business before!

Penny's - either a trivial common noun or a name

Three-Peat - both components are derived from trivial common words

Snickers - a common word for a small laugh

Da Bears - both components are derived from trivial common words (it wasn't even trademarked by the original creators!)

New York Times - a proper nouns and a common word

Wow, all that. Widely understood to be valid by anyone, yet so generic and basic. Yeah, you're the shiznit. Ooops, that may be trademarked too.

You've given another group of examples that demonstrate a lack of understanding for the concept. The question is not whether the words are simply generic, but whether they describe the product/service in a generic way. Naming your candy bar "Snickers" is new and novel. "Snickers" does not generically describe candy bars. "K Mart" does not generically describe department stores. And so on.

But "App Store" does generically describes stores where apps are sold.
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post #69 of 72
3/11/11 at 8:28am
Quote:
Originally Posted by johntosa View Post

You've given another group of examples that demonstrate a lack of understanding for the concept. The question is not whether the words are simply generic, but whether they describe the product/service in a generic way. Naming your candy bar "Snickers" is new and novel. "Snickers" does not generically describe candy bars. "K Mart" does not generically describe department stores. And so on.

But "App Store" does generically describes stores where apps are sold.


Dude you are blind to reason.

S-Mart is Savings Mart. Exactly where you go to get savings at a supermarket. Exactly the same as the App Store.

K-Mart is the same thing, only taking a K from the founders name. But mart is definitely there as a shortened generic word for a place to shop.

Your arguments also utterly miss the mark with the other trademarks. They show any set of words is trademarkable in the early portion of common usage. The only hurdle is to show that the words have not become ubiquitous for any related use.

App Store is not ubiquitous for any particular version of a place to buy applications. The other online stores are referred to as storefronts or marketplaces. Apple called theirs "App Store" from the very beginning, and advertised that name in heavy rotation. Nobody else did. Thats normally enough to pass muster in cases that aren't disputed.

No, MS is just getting pissy, and they aren't even trying to use the term in the name of their "Marketplace Hub". They chose a self-defeating name for their storefront, which may very well be a significant reason their case fails.

Simply, Microsoft tacitly and implicitly supported Apple's uniqueness of App Store by not using App Store in their storefront name. If MS really wanted to kleenex or xerox "app store" that would have been the manner to set it up. Make it so there is doubt in the consumers mind. But they didn't, MS ceded the term App Store to Apple's exclusive use in the marketplace via a routine daily business decision. THAT will go a long way with a Judge because it shows the real impact of the mark in the trade, not just some lawyerly paid whinghing by one rival against another.
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post #70 of 72
3/11/11 at 11:37am
Quote:
Originally Posted by Hiro View Post

Dude you are blind to reason.

S-Mart is Savings Mart. Exactly where you go to get savings at a supermarket. Exactly the same as the App Store.

K-Mart is the same thing, only taking a K from the founders name. But mart is definitely there as a shortened generic word for a place to shop.

Your arguments also utterly miss the mark with the other trademarks. They show any set of words is trademarkable in the early portion of common usage. The only hurdle is to show that the words have not become ubiquitous for any related use.

App Store is not ubiquitous for any particular version of a place to buy applications. The other online stores are referred to as storefronts or marketplaces. Apple called theirs "App Store" from the very beginning, and advertised that name in heavy rotation. Nobody else did. Thats normally enough to pass muster in cases that aren't disputed.

No, MS is just getting pissy, and they aren't even trying to use the term in the name of their "Marketplace Hub". They chose a self-defeating name for their storefront, which may very well be a significant reason their case fails.

Simply, Microsoft tacitly and implicitly supported Apple's uniqueness of App Store by not using App Store in their storefront name. If MS really wanted to kleenex or xerox "app store" that would have been the manner to set it up. Make it so there is doubt in the consumers mind. But they didn't, MS ceded the term App Store to Apple's exclusive use in the marketplace via a routine daily business decision. THAT will go a long way with a Judge because it shows the real impact of the mark in the trade, not just some lawyerly paid whinghing by one rival against another.

The law is clear. A generic product name followed by store is generic for retail store services featuring the product and does not qualify for trademark status. "K" is not a generic product name. Kmart is not a generic term for store or mart.
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post #71 of 72
3/11/11 at 1:30pm
Quote:
Originally Posted by johntosa View Post

The law is clear. A generic product name followed by store is generic for retail store services featuring the product and does not qualify for trademark status. "K" is not a generic product name. Kmart is not a generic term for store or mart.

Not so on both counts. There is no "special list" of automagically excluded terms.

IANAL, but here is the USPTO's synopsis of the laws:

1212.03 Evidence of Distinctiveness Under §2(f)

37 C.F.R. §2.41. Proof of distinctiveness under section 2(f).
(a)... (b)...

To establish secondary meaning, a manufacturer must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 n.11, 214 USPQ 1, 4 n.11 (1982).

That's all she wrote. Apple could ride that one to the bank. There's lots of other ways to illustrate distinctiveness too, like:

1212.06 Establishing Distinctiveness by Actual Evidence
1212.06(b) Advertising Expenditures
1212.06(c) Affidavits or Declarations Asserting Recognition of Mark as Source Indicator
1212.06(d) Survey Evidence, Market Research and Consumer Reaction Studies
1212.06(e)(i) First or Only User [my bold & u/l]

And the actual generics section

1213.03(b) Generic Matter and Matter Which Does Not Function as a Mark goes into detail of how a word may be generic, but the word in a particular stylized appearance can be registered. It's not a section on word disqualifications.

1213.05 Unitary Marks is all about how compound words can be registered interpreted as a single mark rather than as individual words.

1213.06 Entire Mark May Not Be Disclaimed describes how terms in a unitary trademark are legally handled, as in the individual words don't get owned as part of the trademark, just the composite use.


Again this all goes towards dispelling the notion of some form of blanket generic term issue with trademarks. The laws are explicitly written to have a specific means for dealing with the difference between the individual words and the composite registered mark meaning.


This was trivially easy to look up. I suggest you do your reading.
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post #72 of 72
3/11/11 at 3:35pm
Quote:
Originally Posted by tipt View Post

Being a lawyer, tables of contents and table of authorities are quite common. They do not count towards the page limit. So Apple should be fine. I also checked the font by converting the court doc to Word and it appears to be Times New Roman at 11 point font. Most people do not file such complaints, at least in my years of working and I've seen a whole lot worse.

I can understand limits, I just wonder what's happened to the concept of word counts. Words are what people write and read, not pages. The standards for page limits and font sizes appear to be holdovers from the days of typewriters, when your choices were pica or elite, single or double spacing, and that's about all.
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