Originally Posted by frugality
It doesn't matter. The term 'App' to mean 'application' was around before Apple started using it.
Apple was the first one to start using it en masse, but that doesn't mean that they can trademark it.
'App' = application. It has nothing to do with Apple inherently.
'Fail' on Apple's part. Though you can understand their desire to rule out the competition but not allowing them to use a common word. It's as if McDonalds could trademark the word 'Cheeseburger'. That would be a huge competitive advantage against the Burger Kings and Wendys out there. Or they patented the 'Drive Thru', and said that In-N-Out had to call it something else.
I dub your flavor of philosophy "Genericism", and those who practice it "Generecists." This helps organize the world a little.
Now from a Generecist point of view if a word existed before it was used for a trademark or service mark, it is generic and therefore not usable as a trademark. Let us examine the state of the world following those rules.
Is Windows trademarkable? No.
Quick Mart? No.
<imagine a near endless set of business names, all followed by a no>
Under strict genericist logic, the only things actually trademark-able would be nonsense names that had never seen use across a tongue before. Hey, even the name of a person is used by more than one person, making that term more generic than unique.
I don't think Congress ever intended everyone, for the rest of the history of the United States, make up nonsense names in order to be able to trademark them.
No, Congress actually passed a law that shows EXACTLY how a trademark can be made up of common use words and how much protection that special use of the common words gets, and what protection it doesn't get.
Congress even makes folks that trademark combinations of particularly common words list these restrictions in something called a disclaimer that says the trademark owner doesn't own the word completely, but just for use in discriminating between one business/product or another.
The genericist philosophy is simply stupidity run amok. Idiots talking out their asses sideways without any concept of what the real rules and practices are. They are nothing short of the moron who knows just enough to be dangerous to themself, but not enough to be even a little bit right.
I've cited the USPTO verbiage covering the use of generic terms twice before in threads, apparently when becoming a genericist you are advised to not read anything that might actually force andy useful knowledge into the braincase. Here it is again on chance the characters displayed on the screen might be accidentally seen and register on the brain searing themselves past the bastions of conscious stupidity erected to prevent actual fact from interfering with illogical thought.
Originally Posted by Hiro
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
or Only User [my bold & u/l]
And the actual generics section1213.03(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.