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Amazon responds to Apple's trademark suit, argues 'app store' is generic

post #1 of 86
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Amazon has responded in court to Apple's trademark infringement lawsuit over the use of the term "App Store," which Amazon has contended is generic and should be free to use.

Filed this week in a U.S. District Court in the Northern District of California, Amazon's response asserts that the company does not need to obtain a license or authorization from Apple to use the term "app store." The company launched its own digital storefront, the Amazon Appstore for Android, last month.

"... No such license or authorization is required because 'app store' is a generic term, and Amazon's use of the term causes no likelihood of confusion, dilution, or unfair competition," the filing reads.

A day before the Amazon Appstore launched, the company was hit with a lawsuit from Apple, which asked a California court to prevent Amazon from using the App Store name. Apple alleged that Amazon has "improperly" used the "App Store" name, for which Apple filed a trademark shortly after the launch of the original iPhone App Store in July 2008.

In addition to attempting to refute Apple's claims, Amazon also offers the court a number of counterclaims in its response. It offers the definitions of the words "app" and "store," and notes that the American Dialect Society voted "app the "Word of the Year" for 2010.



Amazon joins another rival of Apple, Microsoft, in contending that the "App Store" moniker is generic. The Windows maker filed an objection to Apple's trademark filing earlier this year, contending that the term is too generic to be fairly registered.

Apple responded in court to Microsoft, asserting that the name "App Store" is no more generic than "Windows," the name of Microsoft's hugely successful PC operating system. Apple argued that the Redmond, Wash., software giant "should be well aware" that whether a term is generic depends on the significance of the language to a "substantial majority of the relevant public."
post #2 of 86
Never mind the fact that the term "app" was never widely used before Apple started using it, and the fact that nobody had a centralized "app store" before Apple did. Other than that, it is generic.
post #3 of 86
and Kindle is not?!
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post #4 of 86
Quote:
Originally Posted by bloggerblog View Post

and Kindle is not?!

It can't be mistaken for the other uses of the word. Nor can Windows. Nor Amazon. That's not the point of the argument, though.

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post #5 of 86
There is nothing new here. The people who think that because the term "app" existed previously so Apple cannot trademark "App Store" will continue to do so. The people who understand trademark law will see that that is beside the point and that the term "app store" itself was unique until Apple popularized it. This article adds nothing to that "debate."
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post #6 of 86
Quote:
Originally Posted by Tallest Skil View Post

It can't be mistaken for the other uses of the word. Nor can Windows. Nor Amazon. That's not the point of the argument, though.

Following that logic, nor can "app store"
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post #7 of 86
I support Amazon's argument. Legal weenies might say Apple has a trademark. Indeed they might. Speech of generic terms strongly supercedes any trademark. We have a first amendment, it supports use of generic terms by anyone, end of story.

So it pleases me that my supposedly "stupid" ideas are being run with by Amazon. As an AAPL customer and shareholder for >10 years, they need to keep their hands off the trade speech of others. Apple now has a position of power that should be used responsibly. Claiming they own "App store" is frankly ridiculous, and bleep them for saying so. It sounds like they need to leave the office and go relax.
post #8 of 86
The word "Kleenex" is widely used by the public to mean facial tissue but only one company is allowed to use it for their product. Examples like this are endless.

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post #9 of 86
Quote:
Originally Posted by hittrj01 View Post

Never mind the fact that the term "app" was never widely used before Apple started using it, and the fact that nobody had a centralized "app store" before Apple did. Other than that, it is generic.


Yes and Thog the Caveman created the term "book store" once upon a time. The term is GENERIC. Last post in thread for me.
post #10 of 86
This lawsuit can only have two results
* Apple wins the trademark and Amazon has to come up with an original name.
* Apple loses but Amazon realizes it's going to need an original name to distinguish itself.
It seems like it would just be much simpler if Amazon came up with their own product name. Or we could see how they react if Apple released a fire-starting kit called the "iKindle"
post #11 of 86
Come to think of it, both "Windows" and "Amazon" could be contested for their lack of originality...

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post #12 of 86
Quote:
Originally Posted by bloggerblog View Post

Following that logic, nor can "app store"

You seriously don't believe that "App Store" can't be confused between the dozens of application stores that have popped up? None are the same while providing the same type of content. That's the problem.

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post #13 of 86
Quote:
Originally Posted by SpamSandwich View Post

Come to think of it, both "Windows" and "Amazon" could be contested for their lack of originality...

"Apple"
post #14 of 86
Quote:
Originally Posted by SpamSandwich View Post

Come to think of it, both "Windows" and "Amazon" could be contested for their lack of originality...

Just a few of Amazon's products:


Amazon CloudFront
Amazon SimpleDB
AWS CloudFormation
Amazon CloudWatch
Amazon Elastic Compute Cloud
Amazon Flexible Payments Service

I'm going to get into the cloud business (a service out of my home can't be any less reliable than Amazon lately) and use all those names, cuz they're all GENERIC!
post #15 of 86
Quote:
Originally Posted by jd_in_sb View Post

The word "Kleenex" is widely used by the public to mean facial tissue but only one company is allowed to use it for their product. Examples like this are endless.

I think this summarizes it perfectly. Just because it is widely used, doesn't mean it isn't theirs. I honestly think that Apple will win this one.
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post #16 of 86
I hope Apple wins this. It's pure theft of the App Store trademark.

Amazon's sheer arrogance and unoriginality in this case is astounding. No Amazon, you simply wish that "App Store" could be a generic term, so that you could instantly begin to capitalize on 5 years of hard work by Apple.

I've never even seen another company use the word "Applications" to describe UI programs besides Apple, until maybe the last 2 years.
post #17 of 86
Quote:
Originally Posted by bloggerblog View Post

and Kindle is not?!

Kindle is unique. Kindling (i.e. to start a fire) is not unique.
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post #18 of 86
Quote:
Originally Posted by Mike Eggleston View Post

Kindle is unique. Kindling (i.e. to start a fire) is not unique.

To kindle a fire is not unique.
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post #19 of 86
Quote:
Originally Posted by Mike Eggleston View Post

I think this summarizes it perfectly. Just because it is widely used, doesn't mean it isn't theirs. I honestly think that Apple will win this one.

Not entirely true tho. Kleenex was a completely random name that became popular after the brand became ubiquitous. A better example would be frosted flakes. Kellogs cannot trademark the name frosted flakes because they describe exactly what the product is, a frosted flake, similar to app store. The name app store describes exactly what it is, a store that sells apps. It'd be like trying to trademark the name bookstore before books became wildly popular.

Kellog's Frosted Flakes is what was trademarked, I see the same thing happening with Apples app store.
post #20 of 86
It's not like some random company happened upon a generic term for some generic order of business and then got sued by a litigious non-competitor.

The fact is Apple has made "App Store" the generally recognized term for a centralized web-based application store for smart phones and now tablets. Given that, the rush to create competitive "App Stores" is clearly trading on public perception that "App Store" means certain things. The only reason it seems like some variant on same is the obvious or only term for such a store is simply testament to how throughly Apple has monopolized that perception.

I think Apple has a case in this instance (and cases are always decided on the particulars, not some general idea about "common names" or the like) exactly because "App Store" is such a valuable property and because there's a clear desire on the part of the competition to get some of Apple's credibility in the space to rub off via naming.

Why not Amazon Market for Applications? App Market? Amazon Apps? Android Applications by Amazon? Application Store? App Shop?

Any of those are at least as "obvious" as Amazon Appstore, but they don't make the customer think of Apple's App Store-- which is what Amazon wants and why Apple is suing.
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post #21 of 86
Apple applied and received a patent for App Store. As I understand, it it is not only their right to defend the ownership of the term but their obligation. If they wish to maintain exclusivity.

Although the term app has been around for quite sometime, no one that I am aware of used (or cared about) the term App Store until apple's wildly successful launch.

Although I think they have a good case courts can be unpredictable.
post #22 of 86
Quote:
Originally Posted by addabox View Post

why not amazon market for applications? App market? Amazon apps? Android applications by amazon? Application store? App shop?

Any of those are at least as "obvious" as amazon appstore, but they don't make the customer think of apple's app store-- which is what amazon wants and why apple is suing.


exactly!
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post #23 of 86
Where can I find a list of trademarks owned by Amazon?

I am sure we can find some equally "generic" trademarks that Amazon would be quick to defend.
post #24 of 86
Generic words can be trademarked for specific uses. If someone here can cite proof that the term "App Store" was in wide generic use for an online marketplace where one can purchase computer and mobile device programs before Apple applied for the trademark, I'd gladly concede the point. Until then, kindly STFU.
post #25 of 86
A company that has patented very generic 1-click shopping cart shouldn't talk about what is or isn't generic.
post #26 of 86
Already pointed out that "killer app" existed for an application/program that encouraged hardware sales.

Google Apps also existed before the app store.

You all have fun. This has been debated ad nauseum.

Edit: Not posted here, but on Arstechnica, in the response Amazon quoted Steve Jobs in his Oct earnings call that even he uses the term generically:

Quote:
"So there will be at least four app stores on Android, which customers must search among to find the app they want and developers will need to work with to distribute their apps and get paid. This is going to be a mess for both users and developers. Contrast this with Apple’s integrated App Store, which offers users the easiest-to-use largest app store in the world, preloaded on every iPhone."

Another link that appeared in the thread, interesting if true:

http://trademarkem.com/descriptivene...-vs-salesforce

http://trademarkem.com/descriptivene...apple-vs-amaon
post #27 of 86
Quote:
Originally Posted by SpamSandwich View Post

Come to think of it, both "Windows" and "Amazon" could be contested for their lack of originality...

Yes, you beat me to it. I guess the Brazilians should have a good case there!
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post #28 of 86
Quote:
Originally Posted by addabox View Post

The fact is Apple has made "App Store" the generally recognized term for a centralized web-based application store for smart phones and now tablets. Given that, the rush to create competitive "App Stores" is clearly trading on public perception that "App Store" means certain things. The only reason it seems like some variant on same is the obvious or only term for such a store is simply testament to how throughly Apple has monopolized that perception.

I think Apple has a case in this instance (and cases are always decided on the particulars, not some general idea about "common names" or the like) exactly because "App Store" is such a valuable property and because there's a clear desire on the part of the competition to get some of Apple's credibility in the space to rub off via naming..

Its the part in bold that makes me thing Amazon has a case. There are plenty of products that have had to fight the genericization of their product name.
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post #29 of 86
Quote:
Originally Posted by sprockkets View Post

Already pointed out that "killer app" existed for an application/program that encouraged hardware sales.

Google Apps also existed before the app store.

You all have fun. This has been debated ad nauseum.

Edit: Not posted here, but on Arstechnica, in the response Amazon quoted Steve Jobs in his Oct earnings call that even he uses the term generically:



Another link that appeared in the thread, interesting if true:

http://trademarkem.com/descriptivene...-vs-salesforce

Killer app store?

NO

Google app store?

NO

Maybe if Apple trademarked "app" you may have a point, but they didn't, so you don't.
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post #30 of 86
Quote:
Originally Posted by sprockkets View Post

Already pointed out that "killer app" existed for an application/program that encouraged hardware sales.

Google Apps also existed before the app store.

You all have fun. This has been debated ad nauseum.

Edit: Not posted here, but on Arstechnica, in the response Amazon quoted Steve Jobs in his Oct earnings call that even he uses the term generically:

"So there will be at least four app stores on Android, which customers must search among to find the app they want and developers will need to work with to distribute their apps and get paid. This is going to be a mess for both users and developers. Contrast this with Apples integrated App Store, which offers users the easiest-to-use largest app store in the world, preloaded on every iPhone."

Another link that appeared in the thread, interesting if true:

http://trademarkem.com/descriptivene...-vs-salesforce

That sounds like something Amazons lawyers will bring up. Nice post.
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post #31 of 86
Quote:
Originally Posted by hill60 View Post

Killer app store?

NO

Google app store?

NO

Maybe if Apple trademarked "app" you may have a point, but they didn't, so you don't.

So there will be at least four app stores on Android

I think he has a point.
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post #32 of 86
Quote:
Originally Posted by sessamoid View Post

Generic words can be trademarked for specific uses. If someone here can cite proof that the term "App Store" was in wide generic use for an online marketplace where one can purchase computer and mobile device programs before Apple applied for the trademark, I'd gladly concede the point. Until then, kindly STFU.

Not if the generic word describes exactly what the trademarked entity is or does. The term bookstore or grocery store couldn't be trademarked back in the day before the term was ubiquitous because it described exactly it did. The term app was used before Apple used it to describe their apps. They made it popular, they didn't invent it and they didn't make it unique.

I'd love to know how the term app store doesn't exactly describe a store that sells apps. Similarly, the term app marketplace or whatever other moniker you can come up with would have trouble defending a trademark on the same grounds.
post #33 of 86
We can argue what's generic and what's not, which is certainly what Microsoft and amazon are doing, but we have to be honest here. Amazon just doesn't want the term app store (or appstore) just because they got lazy. There's a popularity that comes along with the term, there's safety (the consumer hears app store is feels safer downloading from that place), there's convenience, there's a whole host of things that are automatically associated with the term app store because of.... You guessed it. Apple. Apple didn't create app or even store but I surely never heard of "app store" before apple came along. Did you? Amazon wants all of the hard work that comes along with a stupid little term. It can't be denied, there is an immense value that is tied to those simple words, whether you separate them or combine them as amazon has done. And it can't further be denied that it was apple that added that value. It's why apple desperately wants to hold on to the term and amazon (and microsoft) desperately want it to be shared. We'll have to wait and see.
post #34 of 86
Quote:
Originally Posted by austinjw View Post


Kellog's Frosted Flakes is what was trademarked, I see the same thing happening with Apples app store.

Interesting example. But are you sure that they can't trademark "frosted flakes" because it is obvious or is it because they just think it until it after others were doing it? If it is the second case then this example actually bolsters Apple's case and justifies it. (If it is indeed the first case then Apple is in trouble with this case!)
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post #35 of 86
Apple should argue in part that App Store is NOT generic -- as Apple and NeXT before it have named their apps with a name.app since the beginning of NEXTSTEP, AFAIK. Of course Apple got this legacy with the NeXT merger and now Mac OS X (nee Rhapsody)...
post #36 of 86
There are clueless idiots who will be confused about Apple's App Store and Amazon's AppStore. I can just see someone going to the Amazon AppStore and buying an app and try to install it on their iPhone. How was I supposed to know? The Amazon version of Angry Birds was cheaper. And they will do that regardless of the name.

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post #37 of 86
Quote:
Originally Posted by Bageljoey View Post

There is nothing new here. The people who think that because the term "app" existed previously so Apple cannot trademark "App Store" will continue to do so. The people who understand trademark law will see that that is beside the point and that the term "app store" itself was unique until Apple popularized it. This article adds nothing to that "debate."

What's new is that Amazon filed its court papers, laying out its arguments.

Interesting that they cite The American Dialect Society choosing "app" as the word of the year in 2010. That's funny on two levels - first, Apple copyrighted the term "App Store" two years before that, and the only reason "app" even became a common word (for the general public, not computer geeks) is because of Apple's use of it, with its "There's an app for that" advertising.
post #38 of 86
Quote:
Originally Posted by elroth View Post

What's new is that Amazon filed its court papers, laying out its arguments.

Interesting that they cite The American Dialect Society choosing "app" as the word of the year in 2010. That's funny on two levels - first, Apple copyrighted the term "App Store" two years before that, and the only reason "app" even became a common word (for the general public, not computer geeks) is because of Apple's use of it, with its "There's an app for that" advertising.

As I recall, trademarks are not like patents. You cant sit on an used trademark the way you can a patent and, which may be Apples case, you cant let your trademark become genericized. I think Apple may end up being a victim of its own success in this matter.
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post #39 of 86
Quote:
Originally Posted by jd_in_sb View Post

The word "Kleenex" is widely used by the public to mean facial tissue but only one company is allowed to use it for their product. Examples like this are endless.

Exactly. That is a completely different issue. Kleenex was not generic before the Kleenex brand existed so it has to become genericized. One of the tests is whether a company fights for the name not to get genercized which Kleenex has. Another example is Jello who protects its brand from becoming genericized with commericals say Jello brand gelletin. "app", on the other hand, was existed before the Apple App Store.
post #40 of 86
I think they're arguing the wrong term. Amazon should just argue that it doesn't matter whether "App Store" is generic or not, but "Amazon Appstore" is definitely not generic, because Amazon is a well-known brand they own and people would not associate Amazon with Apple.
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