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Judge denies Apple motion for preliminary injunction against Amazon Appstore

post #1 of 33
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A federal judge has rejected Apple's request for a preliminary injunction that would have blocked Amazon from using the "App Store" name.

U.S. District Judge Phyllis Hamilton said in a court document that Apple had not established "a likelihood of confusion" with Amazon's Appstore for Android, though she did partially side with Apple in noting that the "App Store" term is not purely generic, Reuters reported on Wednesday.

Also on Wednesday, Hamilton set a trial date of October 2012 for the case. She had previously warned Apple that its lack of evidence of actual customer confusion was a "stumbling block" to its efforts to prevent Amazon from using the mark.

Apple spokeswoman Kristin Huguet responded to the decision by reiterating the company's position that Amazon's application store will "confuse and mislead customers."

Prior to the launch of Amazon's store, Apple sued the online retailer in March for "improperly using" the App Store trademark with the online retailer's software developer program. Days later, Amazon went ahead and launched its "Appstore for Android" in spite of the suit.



Subsequent filings from Apple have described Amazon's digital storefront as "inferior" and a "security threat" because it provided software for rooted Android phones, which are more vulnerable to security breaches.

Apple's "App Store" trademark has been hotly contested, with long-time rival Microsoft remaining one of its most vocal opponents. Earlier this year, the Redmond, Wash., software giant filed an objection to Apple's trademark filing on the grounds that "app" and "store" are generic terms. Apple countered by noting that Microsoft should know a thing or two about trademark terms since it had faced a "decades-long genericness challenge" to the Windows trademark.
post #2 of 33
Quote:
Originally Posted by AppleInsider View Post

U.S. District Judge Phyllis Hamilton said in a court document that Apple had not established "a likelihood of confusion" with Amazon's Appstore for Android, though she did partially side with Apple in noting that the "App Store" term is not purely generic...

I agree with this.
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post #3 of 33
Quote:
Originally Posted by solipsism View Post

I agree with this.

Really ??I mean like wow .

I have to re think all this law suit by the bushel thing >> I guess

or re watch the blob with young steve McQueen

9
whats in a name ? 
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whats in a name ? 
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post #4 of 33
I've always wondered...

Google could have called their store "Android App Store" but they went with "Market" instead.

Palm chose App Catalog... RIM went with App World... and Microsoft used Marketplace.

Did these companies do that to avoid any potential problems with Apple? Or were they really trying to be creative?

And is Amazon removing a space and making the word "Appstore" just a lack of creativity?
post #5 of 33
Well this is going to hurt Apple's case against Samsung.

Samsung's lawyers will use this as a precedent.

It will require Apple's lawyers to provide further proof.

"Like I said before, share price will dip into the $400."  - 11/21/12 by Galbi

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"Like I said before, share price will dip into the $400."  - 11/21/12 by Galbi

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post #6 of 33
Quote:
Originally Posted by Galbi View Post

Well this is going to hurt Apple's case against Samsung.

Samsung's lawyers will use this as a precedent.

It will require Apple's lawyers to provide further proof.

Really? Someone bringing a lawsuit needs proof?
That's bit of whack, isn't it?
post #7 of 33
Apple needs to apply for a change of venue... Tyler, Texas! Yeeeehaw!

Proud AAPL stock owner.

 

GOA

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Proud AAPL stock owner.

 

GOA

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post #8 of 33
Quote:
Originally Posted by Galbi View Post

Well this is going to hurt Apple's case against Samsung.

Samsung's lawyers will use this as a precedent.

It will require Apple's lawyers to provide further proof.

Not at all. A name is not equal to trade dress via similar shape, UI etc.

And this isn't a win for Amazon. All the judge said is that this will have to go to the full trial, and presumably until the end of that trial, Amazon can keep using the name. But in the end, the trial could turn in favor of Apple. Especially since the judge didn't agree with Amazon on the generic issue
post #9 of 33
Quote:
Originally Posted by charlituna View Post

Not at all. A name is not equal to trade dress via similar shape, UI etc.

And this isn't a win for Amazon. All the judge said is that this will have to go to the full trial, and presumably until the end of that trial, Amazon can keep using the name. But in the end, the trial could turn in favor of Apple. Especially since the judge didn't agree with Amazon on the generic issue

Put another way, Apple lost the bid for an injunction. Probably boilerplate tactics in this kind of case anyway but this is a loss to Apple.
post #10 of 33
I do not think people are going to confuse "App Store" with "Amazon Appstore For <Platform>". Everyone knows the App Store as belonging to Apple, not Amazon. Its just like Microsoft and their Office Suite - if I was to say "I got new office software", pretty safe bet the vast majority will think "Microsoft Office".

... at night.

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... at night.

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post #11 of 33
Here are two simple questions:

Q1. When you think of Apps, what company do you think of?
Q2. What company owns the App Store?

If you ask the everyday consumer these two questions, I wonder how many would say Apple? I also wonder how much the answer would change if you target a specific age group? For example, if you ask a thousand teenagers these two questions, how many would respond by saying Apple?

Ever since the dawn of the original iPhone, Apple single-handedly revived the word App. Moreover, they made it a household name. Thanks to their infamous marketing engine, they got everyone thinking/talking about Apps. As a matter of fact, there was a time when everyone was saying, "There's an App for that."

It makes you wonder if Amazon needed to use the name "App Store" to generate interest/buzz/sales. After all, I find it hard to believe the creative team over at Amazon couldn't find another store name to sell their Apps.

If Amazon requires creative inspiration to find a new name, they should look at the dollar store industry. People in that industry are very creative for finding other ways to verbalize dollar store.
post #12 of 33
Quote:
Originally Posted by Galbi View Post

Well this is going to hurt Apple's case against Samsung.

Samsung's lawyers will use this as a precedent.

It will require Apple's lawyers to provide further proof.

One thing has nothing to do with the other.
post #13 of 33
Quote:
Originally Posted by benanderson89 View Post

I do not think people are going to confuse "App Store" with "Amazon Appstore For <Platform>". Everyone knows the App Store as belonging to Apple, not Amazon. Its just like Microsoft and their Office Suite - if I was to say "I got new office software", pretty safe bet the vast majority will think "Microsoft Office".

But if some company named their product "Office Software", there would be confusion.
post #14 of 33
This post is a great example of the problem facing Apple. On the one hand it details just how bad the Amazon AppStore is, how bad the customer experience is, how bad the developer experience is and thus gives a good indication of how Amazon might negatively impact the value of Apple's mark. On the other hand it's simply lousy with uses of 'app store' as a generic - so Apple won't be able to use it to support their case.

http://bithack.se/news/apparatus-ama...ly-4-2011.html

The post is an open letter from a developer that had a really bad experience with Amazon and concludes

From a developer perspective, I don't see why anyone would choose to publish an app on Amazon Appstore. Similarly, I have yet to figure out why any user would switch to Amazon Appstore from Android Market.
post #15 of 33
Quote:
Originally Posted by RedPill View Post

[FONT="Georgia"][SIZE="3"]Here are two simple questions:

Q1. When you think of Apps, what company do you think of?
Q2. What company owns the App Store?

If you ask the everyday consumer these two questions, I wonder how many would say Apple? I also wonder how much the answer would change if you target a specific age group? For example, if you ask a thousand teenagers these two questions, how many would respond by saying Apple?

Manipulating the the question, to have the answer fit your needs, nicely done.
Thus these question aren't simple.

While one may argue about whether Apple has right on the term "App store", the term "App" is generic. It's the only logical abbreviation to "Application". That's exactly why Apple - even though they used the term "App" first - do not own the trademark.
Just go out there and ask a random not-Apple-Smartphone user what he downloads in his devices Market/Shop/etc. The Answer will most likely be "App"
post #16 of 33
Quote:
Originally Posted by benanderson89 View Post

I do not think people are going to confuse "App Store" with "Amazon Appstore For <Platform>". Everyone knows the App Store as belonging to Apple, not Amazon. Its just like Microsoft and their Office Suite - if I was to say "I got new office software", pretty safe bet the vast majority will think "Microsoft Office".

I think it is difficult for those of us who follow tech trends and news stories to properly judge whether it is confusing. There is a huge market out there, full of people who don't give tech news and knowledge a second of their time.

As an example, I love Apple's customer service but I have met several people who tell me that the service stinks. When I ask them where they went for service they tell me the Apple Store. What they really mean is some reseller's store with a name that can be associated with Apple (i.e. Simply Mac). These are people who had no clue that the reseller wasn't a true Apple Store. These are people who could easily be confused by the Appstore and associate any bad experience they might have with The App Store.
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post #17 of 33
Quote:
Originally Posted by benanderson89 View Post

I do not think people are going to confuse "App Store" with "Amazon Appstore For <Platform>". Everyone knows the App Store as belonging to Apple, not Amazon. Its just like Microsoft and their Office Suite - if I was to say "I got new office software", pretty safe bet the vast majority will think "Microsoft Office".

Funny because that has happened to me several times over the last few weeks. I've had to explain to less-than-tech-savvy people that Amazon's App Store is different than Apple's App Store and they have to go to Apple's App Store for their devices.
post #18 of 33
Quote:
Originally Posted by RedPill View Post

[FONT="Georgia"][SIZE="3"]Here are two simple questions:

Q1. When you think of Apps, what company do you think of?
Q2. What company owns the App Store?

Apple may have made app popular, but it doesn't give them the right to the name given that other people used it before.

Another question to ask though is:

Q3. Where do you get iPhone apps from?

See how many people say iTunes rather than App Store.

Apple say Amazon calling their App Store the Amaazon App Store is confusing, yet their own app store is called App Store but located in another store called iTunes Store which only has one checkout, so it isn't actualy a store called App Store it's a store department called App Store. But none of the other departments in the iTunes Store have store on the end of the name e.g. Music Store, so why isn't it just called Apps. Plus they have the Mac App Store which is quite clear that it's Apps for Mac, so shouldn't the iTunes Store App Store be called iOS App Store. Or instead of having a iTunes store why not an Apple Store, then they could have the Apple iOS Apps Store and Apple Mac App Store, or maybe just an Apple Store with iOS apps and Mac apps. If anything the Amazon App Store for Android is the least confusing of them all as it actuall says what it's for rather than not saying the device and half associating itself with music.
post #19 of 33
Quote:
Originally Posted by melgross View Post

One thing has nothing to do with the other.

Actually, Apple considers its "design" of the iPhone a trademark in its recent filing.

Apple also considers the words "App store" a trademark as well.

Therefore, both fit in the same category under trademark.

Yes, this case does set a precedent.

Quote:
Originally Posted by Chris_CA View Post

Really? Someone bringing a lawsuit needs proof?
That's bit of whack, isn't it?

Read the judges summary about Apple's "lack of proof". The judge require not just any proof but EMPIRICAL proof as in figures and numbers to conclusively determine any ambiguity. Popularity and familiarity alone is not enough proof.

I suspect this case will ultimately lead to what a recent analyst claimed Apple settling out of court. Apple requires all of the patents that Samsung claims in its infringement case to sell their iPhones, iPods and iPads. In Samsung's lawsuit, you can objectively prove or disprove a patent infringement because quite frankly it is a REAL technology patent, an idea and not a design.

"Like I said before, share price will dip into the $400."  - 11/21/12 by Galbi

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"Like I said before, share price will dip into the $400."  - 11/21/12 by Galbi

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post #20 of 33
Quote:
Originally Posted by shadow415 View Post

Funny because that has happened to me several times over the last few weeks. I've had to explain to less-than-tech-savvy people that Amazon's App Store is different than Apple's App Store and they have to go to Apple's App Store for their devices.

I think you should submit an Amicus Brief to the court on Apple's behalf detailing this experience.
post #21 of 33
When I want to start the app that I use to browse Amazon's store, I look for "Amazon", not for Market or Store. Even if I did confuse the names, how would I install anything from Apple's App Store on an Android device?

Good thing that the judge is reasonable. For a moment there I was worried I might have to return plants vs zombies. Whew!

"They're coming..."
post #22 of 33
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post #23 of 33
Quote:
Originally Posted by melgross View Post

But if some company named their product "Office Software", there would be confusion.

Uh, actually, that is exactly what other companies do. Ever hear of open office? Then there's Corel Office (corel bought word perfect and now has their own office suite). Microsoft doesn't try to claim that office is a trademark, however Microsoft Office is. The only reason people assume someone is talking about Microsoft Office when the generic term Office is used is because Microsoft Office is so dominant.

The same is true for the app store. Although apple has a trademark on it, for now, the term is generic, and really can't be protected. The reason there is confusion in the marketplace now is because App Store is too generic of a term, and people don't know if someone really means Apple's iOS App Store. It's not only that Amazon's App Store is confused with it, but even Android marketplace. People just refer to the place on a phone where they buy apps as an app store. Just like people referred to the local shops where they bought computers as computer stores, the place where they bought records as record or music stores, and the big stores that had multiple departments selling different items as department stores etc. Hopefully the judge has some sense and shoots Apple down. Just because Apple was first doesn't give them a monopoly on the word.

Phil
post #24 of 33
Quote:
Originally Posted by philgar View Post

Hopefully the judge has some sense and shoots Apple down. Just because Apple was first doesn't give them a monopoly on the word.

It's been said before, and it will be said again, just because the phrase is rapidly genericizing doesn't automatically render the TM invalid. Rollerblade is the obvious counter-example.
post #25 of 33
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post #26 of 33
Quote:
Originally Posted by RedPill View Post

Here are two simple questions:

Q1. When you think of Apps, what company do you think of?
Q2. What company owns the App Store?

If you ask the everyday consumer these two questions, I wonder how many would say Apple? I also wonder how much the answer would change if you target a specific age group? For example, if you ask a thousand teenagers these two questions, how many would respond by saying Apple?

Ever since the dawn of the original iPhone, Apple single-handedly revived the word App. Moreover, they made it a household name. Thanks to their infamous marketing engine, they got everyone thinking/talking about Apps. As a matter of fact, there was a time when everyone was saying, "There's an App for that."

It makes you wonder if Amazon needed to use the name "App Store" to generate interest/buzz/sales. After all, I find it hard to believe the creative team over at Amazon couldn't find another store name to sell their Apps.

If Amazon requires creative inspiration to find a new name, they should look at the dollar store industry. People in that industry are very creative for finding other ways to verbalize dollar store.

Way to slyly make the questions point to Apple . Regardless, while I think MANY people (and not all) would say Apple for the second one, I really don't think most people would say Apple for the first one.

Edit: I did a very small sample survey. Apple may have once owned the world "app store," but it appears pretty generic to me now.
Just texted 5 different people with smartphones (well, 6, but one didn't answer haha). Here are the results to their questions:
1)
"Android"
"Android? I don't really know what you're asking"
"People who make phones?"
"Apple"
"As in, apps for phone?"

2)
"The App Store? There's one for the iPhone and Android"
"Apple"
"Apple"
"Apple"
"Doesn't it depend? Doesn't [name removed] have an app store for Android too?"

Interpret this however you want, but I think my point is proven
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post #27 of 33
Quote:
Originally Posted by cloudgazer View Post

It's been said before, and it will be said again, just because the phrase is rapidly genericizing doesn't automatically render the TM invalid. Rollerblade is the obvious counter-example.


rollerblade is a separate thing altogether. They created a new product that didn't exist who's generic term was inline skate. The word app had been in use to describe applications long before apple popularized its use for mobile applications. That is the big difference. If many people previously had called inline skates rollerblades, and someone came in trademarketing rollerblades, they'd also be shot down. In this case, the two are nothing alike. The term roller and blade are both generic, but not really the first thing someone would think of when they saw the device (skate is the generic term people would think of due to their similarity with rollerskates and ice skates). If they tried to trademark their name as road skate or something along those lines, they also wouldn't be protected by trademark law.

Phil
post #28 of 33
Quote:
Originally Posted by Stupidhero View Post

Just go out there and ask a random not-Apple-Smartphone user what he downloads in his devices Market/Shop/etc. The Answer will most likely be "App"

If you ask a random person what they use to blow their nose, they'll likely say "Kleenex".

Just because a word enters common use doesn't mean the term is generic. It's whether it was in common use BEFORE the mark was made popular.

In the case of "apps", it's debatable because I know tech-people used the term as an abbreviation. However, I don't recall any companies selling software referring to them as apps, or it being a common household term. Even Handango, the largest "app store" predating the App Store referred to their products as "applications/games" or "software".
post #29 of 33
Quote:
Originally Posted by philgar View Post

rollerblade is a separate thing altogether. They created a new product that didn't exist who's generic term was inline skate. The word app had been in use to describe applications long before apple popularized its use for mobile applications. That is the big difference. If many people previously had called inline skates rollerblades, and someone came in trademarketing rollerblades, they'd also be shot down. In this case, the two are nothing alike. The term roller and blade are both generic, but not really the first thing someone would think of when they saw the device (skate is the generic term people would think of due to their similarity with rollerskates and ice skates). If they tried to trademark their name as road skate or something along those lines, they also wouldn't be protected by trademark law.

Phil

While I agree that rollerblade is not similar, I disagree with your reasoning. Rollerblade could arguably called a generic term. The difference is is that it has never been taken to court (from my knowledge) about it. Trademarks still stand for even the most generic terms imaginable until they're removed in court. No one has taken up "rollerblade" in court from what I've found.
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post #30 of 33
Quote:
Originally Posted by Galbi View Post

Actually, Apple considers its "design" of the iPhone a trademark in its recent filing.

Apple also considers the words "App store" a trademark as well.

Therefore, both fit in the same category under trademark.

Yes, this case does set a precedent.



Read the judges summary about Apple's "lack of proof". The judge require not just any proof but EMPIRICAL proof as in figures and numbers to conclusively determine any ambiguity. Popularity and familiarity alone is not enough proof.

I suspect this case will ultimately lead to what a recent analyst claimed Apple settling out of court. Apple requires all of the patents that Samsung claims in its infringement case to sell their iPhones, iPods and iPads. In Samsung's lawsuit, you can objectively prove or disprove a patent infringement because quite frankly it is a REAL technology patent, an idea and not a design.

This post is so wrong, I don't even know where to begin.

This case sets no precedent, as nothing has been decided; it will not proceed to actual court.

Second, Apple's lawsuit against Samsung hinges on a variety of intellectual property, including patents, trademarks, and copyrights. At its core, it is a look-and-feel lawsuit, which of course requires some subjectivity.

Third, even if it was a trademark vs. trademark, losing one trademark does not impact other, unrelated trademarks at all. Apple isn't suing Samsung over the App Store. It has no bearing at all.
post #31 of 33
Quote:
Originally Posted by LogicNReason View Post

Way to slyly make the questions point to Apple . Regardless, while I think MANY people (and not all) would say Apple for the second one, I really don't think most people would say Apple for the first one.

Edit: I did a very small sample survey. Apple may have once owned the world "app store," but it appears pretty generic to me now.
Just texted 5 different people with smartphones (well, 6, but one didn't answer haha). Here are the results to their questions:
1)
"Android"
"Android? I don't really know what you're asking"
"People who make phones?"
"Apple"
"As in, apps for phone?"

2)
"The App Store? There's one for the iPhone and Android"
"Apple"
"Apple"
"Apple"
"Doesn't it depend? Doesn't [name removed] have an app store for Android too?"

Interpret this however you want, but I think my point is proven

Your "survey" is flawed, besides the small sample size. Your survey was conducted after Amazon launched their "Appstore" which invalidates the results and actually supports Apple's argument that their brand is harmed and consumers confused. Before the Amazon Appstore, how many people associated "App Store" with Apple? That's the real question.
post #32 of 33
Quote:
Originally Posted by Pendergast View Post

Your "survey" is flawed, besides the small sample size. Your survey was conducted after Amazon launched their "Appstore" which invalidates the results and actually supports Apple's argument that their brand is harmed and consumers confused. Before the Amazon Appstore, how many people associated "App Store" with Apple? That's the real question.

I'm aware that my survey is very small, I even alluded to that, but thank you jk. But seriously, I know this is not a scientific survey, but it does lead me to believe that App Store really is pretty generic (I only did this because I know from my daily life that people don't associate app store with Apple, but saying "all of my friends" on the internet is a very poor basis for a point )

ANYHOW, I think you're confused on what Apple has to prove here. Despite what many people on the internet think (and even on here), the timing for Apple using App store and the timing for Amazon using the name app store have absolutely nothing to do with this. Apple has to prove that people associate the phrase "app store" with Apple above anything else, regardless of competitors. While I understand what you're getting at (the idea that Amazon's app store was introduced and is therefor hurting Apple's brand) is not actually what this lawsuit is about anymore. Apple took Amazon to court for that and the preliminary injunction means that that is no longer the issue. The issue now is should Amazon (and everyone else) be allowed to use the phrase "app store." Apple has to show that when the a commercial saying App Store shows up, everyone immediately thinks of Apple's. If they can't do that, they will lose this case (and now that the judge has stated she doesn't think it's generic, I really don't know what will happen ). So I see what you're saying, but that is simply something people on the internet have been preaching that just isn't correct. Apple's attempt to prove that Amazon is depreciating their name has failed. They are (and have been) protecting their trademark for some time now

That being said, my survey wouldn't aid Apple at all. The people I asked seemed to believe app store was just used to describe where they got Apps from. Even more interesting is that some of the said "android"...Not one of them even mentioned Amazon who actually uses the phrase Appstore. I wish my WP7 friend would have responded (my ONLY one ), I kind of want to know what he would think...for once
TalkAndroid anyone?
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post #33 of 33
This morning the EU patent authorities demonstrated some common sense even if the US doesn't. They've rejected a patent for Amazon's "1-click", saying it was too obvious to be patentable. That may indicate that the EU will be less friendly to some other obvious "inventions" currently claimed by other tech players, no names to be mentioned.

http://www.guardian.co.uk/technology...nks-newsbucket
melior diabolus quem scies
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