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Amazon requests judge throw out Apple's claim of false advertisement

post #1 of 46
Thread Starter 
Amazon on Wednesday asked a federal judge to throw out an ongoing court case Apple leveled against the online retail giant for allegedly misusing the "App Store" name, saying the term has become so widespread that it is now generic.

Apple first filed suit against Amazon in March 2011 for using the "App Store" trademark in its online store for Android apps, and added the false advertising claim in November the same year after the "Amazon Appstore for Android" changed to the "Amazon Appstore." The Cupertino company asserts the name change possibly confused consumers.

Amazon App Store


In its filing on Wednesday, Amazon countered, claiming the "app store" moniker has become generic and therefore cannot constitute false advertising. The company went further, noting that Apple CEO Tim Cook and late cofounder Steve Jobs used the name to describe competitors, with Cook having referred to "the number of app stores out there" and Jobs noting the "four app stores on Android."

"Apple presumably does not contend that its past and current CEOs made false statements regarding to those other app stores to thousands of investors in earnings calls," Amazon said. "To the contrary, the use of the term 'app store' to refer to stores selling apps is commonplace in the industry."

U.S. trademark law leaves the defense of name use up to owners, and a failure to effectively protect a property can result in a trademark becoming a generic description of a service or product, as Amazon argues regarding its use of "app store."

Previous to Apple's original 2011 claim, Microsoft objected to the "App Store" trademark application, claiming the term was too generic to be registered. Apple argued that if Microsoft was able to trademark "Windows," the "App Store" name should be honored as well.
post #2 of 46
FACT: 'App Store" Does Not Equal 'Appstore', whether Apple likes it or not.
"Why iPhone"... Hmmm?
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"Why iPhone"... Hmmm?
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post #3 of 46

I'm not sure their new name constitutes 'false advertising', but I am also not sure that I understand the entirety of what the phrase 'false advertising' can contain. 

 

To me it sounds more like 'deceptive advertising', but perhaps that's a term too specific to be considered legally defined.


Originally Posted by DaHarder View Post
FACT: 'App Store" Does Not Equal 'Appstore', whether Apple likes it or not.
 

Start a computer company called "AppleInc" and we'll see how far that gets you. lol.gif

Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
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Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
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post #4 of 46
Quote:
Originally Posted by Tallest Skil View Post

I'm not sure their new name constitutes 'false advertising', but I am also not sure that I understand the entirety of what the phrase 'false advertising' can contain. 

 

To me it sounds more like 'deceptive advertising', but perhaps that's a term too specific to be considered legally defined.

 

Start a computer company called "AppleInc" and we'll see how far that gets you. lol.gif

 

I think I'll drink some cocacola, I just invented it.

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post #5 of 46
> I think I'll drink some cocacola

i almost got out of my chair to sue you, before i realised you hadn't written co cacola, which i may or may not happen to have invented. but which i will not, in any case, consume, since it is only likely to dissolve my intestines and make me fat prior to that (just like the other thing).

i guess the meat of the issue lies in how many others used app store (with or without the space) before apple decided to sue amazon. if many, then i guess apple has less of a defence about it having become generic. if amazon were the first copiers (or re-inventers if you prefer) then logically speaking, it becomes justifiable that apple sued them, and is holding off on whoever else has made it a "generic" term, until the outcome of this case if known.
post #6 of 46
Quote:
Originally Posted by Tallest Skil View Post

Quote:
Originally Posted by DaHarder View Post

FACT: 'App Store" Does Not Equal 'Appstore', whether Apple likes it or not.
 

Start a computer company called "AppleInc" and we'll see how far that gets you. lol.gif

 

Typical DaHarder drive-by trolling...

Why does Apple bashing and trolling make people feel so good?

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Why does Apple bashing and trolling make people feel so good?

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post #7 of 46
Quote:
Originally Posted by DaHarder View Post

FACT: 'App Store" Does Not Equal 'Appstore', whether Apple likes it or not.


Fact [fakt] noun: something that actually exists; reality; truth

Since you have zero proof, live in your own reality, and spin propaganda to suit your agenda - you as usual speak a lot but say little.

post #8 of 46
Did anyone but apple use app store to sell smartphone apps? or applications even? Before March 2011? Before amazon did (which i presume was in 2010)?

I must admit I had never heard software referred to as apps prior to the iphone, and when i heard the reference actually thought they were some sort of special name for phone applications.

Apple's weak bit is that the alliterative "Amazon Appstore for Android" was apparently OK, according to this article.

questions, questions.
It's the heat death of the universe, my friends.
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It's the heat death of the universe, my friends.
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post #9 of 46
Quote:
Originally Posted by DaHarder View Post

FACT: 'App Store" Does Not Equal 'Appstore', whether Apple likes it or not.

So you wouldn't have a problem with someone signing up on AI as Da Harder and then posting in your style but making your posts sound rational and sane?

"The real haunted empire?  It's the New York Times." ~SockRolid

"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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"The real haunted empire?  It's the New York Times." ~SockRolid

"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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post #10 of 46
Quote:
Originally Posted by SolipsismX View Post

So you wouldn't have a problem with someone signing up on AI as Da Harder and then posting in your style but making your posts sound rational and sane?

 

Mind = Blown

Proud AAPL stock owner.

 

GOA

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Proud AAPL stock owner.

 

GOA

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post #11 of 46
Quote:
Originally Posted by Tallest Skil View Post

I'm not sure their new name constitutes 'false advertising', but I am also not sure that I understand the entirety of what the phrase 'false advertising' can contain. 

 

To me it sounds more like 'deceptive advertising', but perhaps that's a term too specific to be considered legally defined.

 

Start a computer company called "AppleInc" and we'll see how far that gets you. lol.gif

 

Funny. To me, it sounds like a "store" from which you can purchase "apps" from, which is exactly what it is. What exactly is deceptive about that?

post #12 of 46
Quote:
Originally Posted by SolipsismX View Post

So you wouldn't have a problem with someone signing up on AI as Da Harder and then posting in your style but making your posts sound rational and sane?

Ooh, that's kind of a tempting proposition... You always have to watch out for that dreaded space character.

 

"Cover your butts, Bernard is watching"

post #13 of 46

If Amazon had called it "The Apple App Store," or "The IOS App Store," they might have a point. But this, this is like Walgreens Drugstore suing Hewitt Drugstore for false advertising, since people might be confused by "drugstore." Apple has to prove without a shadow of a doubt that people are morons, and can't tell the difference between Amazon and Apple. This is like parking an S1500 next to an F-150, and then trying to stump people by asking them to point at the Ford.

 

You all attack others for disagreeing with you, yet never state exactly why your opinions have merit themselves. Brand confusion was a legitimate aspect of the Samsung lawsuit, in that they had documented evidence of consumers purchasing Tabs thinking they were iPads, and then returning them the moment they realized their mistake. Apple has yet to prove damage to brand integrity through similar circumstances here, and that, as well as freaking common sense, dictates this suit should have been tossed a long time ago. No, this is just Apple's massively overdeveloped legal department doing everything it can to justify it's expenditures as well as it's very existence.

post #14 of 46
I don't see where precisely the name became widely used, but app store is truly very generic. Just look at any phone's review, tech journalist will call any application an app.
post #15 of 46
In all this bickering no one pointed out:

Amazon can't use the word Android since they forked their own version. They had to take Android out of their App Store name bc Google forbids the use of their trademarked "Android" name in forked versions.

How about a little deep thinking here or would that be too much to ask from the trolls from both sides.
post #16 of 46
Quote:
Originally Posted by ClemyNX View Post

I don't see where precisely the name became widely used, but app store is truly very generic. Just look at any phone's review, tech journalist will call any application an app.

The question is in timing, not what tech reviewers say.

IIRC, I never saw tech reviews mentioning App Stores in Palm or Windows Mobile reviews.

Apple started using the term in 2008 and then Google started using the term Marketplace. If you have any sense of logic, or marketing and business strategy, you would understand that Amazon's intention was to mislead consumers that had heard the term App Store. They wanted to use terms that consumers associate with a decent and well support product.

If anyone ignores this they are either biased or have no sense of reason aka dumb.

Sometimes I feel that I'm responding to 13 year olds, that lack any understanding of logic and reason. Unfortunately many posters here are so biased ( from both sides ) and avoid any meaningful discussion (regardless of age) of the facts and each companies strategy and long term goals.
post #17 of 46
Quote:
Originally Posted by Spacepower View Post


Amazon can't use the word Android

Yes they can use it and they do use it because that is what it is.

-> Amazon Appstore for Android

 


They had to take Android out of their App Store

Except they didn't take it out because it is an Appstore for Android.

It isn't Appstore for Kindle iOS Devices using a forked version of Android but we can't call it Android

post #18 of 46
It would be nice if you did your research or lookup across
the internet!

In any case the use or usage & conception originates within
Apple: http://www.zdnet.com/blog/btl/apples-app-store-and-a-little-trademark-history/46336
post #19 of 46
Quote:
Originally Posted by ClemyNX View Post

I don't see where precisely the name became widely used, but app store is truly very generic. Just look at any phone's review, tech journalist will call any application an app.

In the soft beverage industry, in the USA, we call it soda, soda pop, cola, or coke (even when we don't specifically mean Coke VS Pepsi, bc many restaurants only sell Coke or Pepsi, not both).

Apple is fighting for the strength of their brand . They don't want their brand diluted. They want ordering a coke to mean you get a Coke, not a Pepsi or Coke, or the only one being served..

Bonus facts for anyone that wants to learn (maybe not many here)?

McDonalds had a contract with Coca Cola

In response:
Pepsi Co started Pizza Hut, KFC, and Taco Bell to sell more Pepsi Cola.

That's strategic business .
post #20 of 46
Quote:
Originally Posted by Chris_CA View Post

Yes they can use it and they do use it because that is what it is.
-> Amazon Appstore for Android



Except they didn't take it out because it is an Appstore for Android.
It isn't Appstore for Kindle iOS Devices using a forked version of Android but we can't call it Android

I'm going by the article's supposed facts where they took out "Android"

Did you read the article? Maybe my reading comprehension is low or you have and older device?
post #21 of 46
Quote:
Originally Posted by Entropys View Post

Did anyone but apple use app store to sell smartphone apps? or applications even? Before March 2011? Before amazon did (which i presume was in 2010)?
I must admit I had never heard software referred to as apps prior to the iphone, and when i heard the reference actually thought they were some sort of special name for phone applications.
Apple's weak bit is that the alliterative "Amazon Appstore for Android" was apparently OK, according to this article.
questions, questions.

 

The term apps has been used for as long as 'applications' have existed as the most used abbreviation. As for the word 'store' I think you get the idea.

 

I wonder if the combination of 2 generally used words is in any way protectable..

post #22 of 46
Quote:
Originally Posted by mausz View Post

 

The term apps has been used for as long as 'applications' have existed as the most used abbreviation. As for the word 'store' I think you get the idea.

 

I wonder if the combination of 2 generally used words is in any way protectable..

 

Your tale about 'apps' is revisionist history. It's simply not the case that apps was a commonly used synonym for 'computer programs' until after Apple popularized its use on iOS. And, most usage before that was restricted to Apple/NeXT platforms, which used .app as the extension for application bundles. Prior to usage with iOS, while 'application' was used, 'program' was much more common, and even 'executable' was still more commonly used than 'app'.

 

As for your second point, think one word: Windows.

post #23 of 46
Quote:
Originally Posted by anonymouse View Post

 

Your tale about 'apps' is revisionist history. It's simply not the case that apps was a commonly used synonym for 'computer programs' until after Apple popularized its use on iOS. 

 

The phase "killer app" has existed for almost as long as personal computers themselves. Wikipedia says that its origins are with VisiCalc on the Apple II, way back in 1983.

 

I don't know a great deal about US IP law but English IP law is very clear - you can't trademark generic terms related to your business. If you sell apples, you can't trademark apple. If your business is in Ohio, you can't trademark Ohia. If your name is John Smith, you can't trademark John Smith. Both of the term "app" and "store" are generic when related to selling applications from a virtual store.

post #24 of 46
In related news, Unilever lost its trademark dispute because Q-tip is now a generic term for all cotton swab products and Kimberly-Clark also lost exclusive use of Kleenex for all facial tissues.

Seriously though - if they believe their own argument - they can call their store anything they like and the average consumer will refer to it as "the appstore"

Trying to remember where I heard this - might have been on TV or a friend - one person pulls out their new cellphone and says check out my new iPhone - and shows a device that is clearly not an iPhone, leaving one to wonder whether the person was just daft and actually thought they bought an iPhone or if even the term "iPhone" has become synonymous with a touch screen smart phone to those who are less than technologically savvy.
post #25 of 46
IMHO apple is wrong with this. "app store" is the easiest way to describe a store that sells applications, and therefore not exclusive to apple. Apple may have popularized the phrase, but that doesn't mean it isn't obvious.

The "windows" argument doesn't make sense IMHO, because "window" is a metaphor for an on-screen element, not an obvious description of what it is. Windows on a computer look nothing like windows in the real world. You could just as easily call them "squares" or "dialogs" or anything else. Microsoft decided to call them windows.
post #26 of 46
App Store is the same as Drug store.
And some of the posts on here read like they need to get to theirs fast for a refill.
post #27 of 46
Quote:
Originally Posted by Spacepower View Post
I'm going by the article's supposed facts where they took out "Android"

Click on the link I posted. It takes you to the Amazon Appstore for Android.

 

 

Did you read the article? Maybe my reading comprehension is low or you have and older device?

I don't understand. ???

post #28 of 46
Quote:
Originally Posted by mausz View Post

 

The term apps has been used for as long as 'applications' have existed as the most used abbreviation. As for the word 'store' I think you get the idea.

 

I wonder if the combination of 2 generally used words is in any way protectable..

 

Maybe Apple could cordon off part of iTunes, devoted to feminist works, they could call it Amazon store named after the Amazon's of Greek and Roman legend.

 

After all Amazon and store are generic.

 

The Word™ Coca and the Word™ Cola, combined = Coca Cola™.

Better than my Bose, better than my Skullcandy's, listening to Mozart through my LeBron James limited edition PowerBeats by Dre is almost as good as my Sennheisers.
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Better than my Bose, better than my Skullcandy's, listening to Mozart through my LeBron James limited edition PowerBeats by Dre is almost as good as my Sennheisers.
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post #29 of 46
Originally Posted by Cash907 View Post
Funny. To me, it sounds like a "store" from which you can purchase "apps" from, which is exactly what it is. What exactly is deceptive about that?

 

And here's number two! Not in that sense of the phra—well… 


Originally Posted by Spacepower View Post
Amazon can't use the word Android since they forked their own version.

 

Oh, they forked their own version, all right… 


Originally Posted by iSheldon View Post
App Store is the same as Drug store.

 

Really? I can buy prescription drugs from Apple? That sounds kind of illegal to me.

Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
Reply

Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
Reply
post #30 of 46
Quote:
Originally Posted by Tallest Skil View Post


Really? I can buy prescription drugs from Apple? That sounds kind of illegal to me.

No but you can buy apps from any app store and drugs from any drug store.
Or candy from any candy store if you prefer.
post #31 of 46
Quote:
Originally Posted by RichL View Post

 

The phase "killer app" has existed for almost as long as personal computers themselves. Wikipedia says that its origins are with VisiCalc on the Apple II, way back in 1983.

 

I don't know a great deal about US IP law but English IP law is very clear - you can't trademark generic terms related to your business. If you sell apples, you can't trademark apple. If your business is in Ohio, you can't trademark Ohia. If your name is John Smith, you can't trademark John Smith. Both of the term "app" and "store" are generic when related to selling applications from a virtual store.

So in the UK you could sell an operating system that uses windows and call it Windows?

 

Say it was Linux based you could call it Lindows...

 

...oh, wait.

 

 

So the British can't trademark generic words...

 

...pears, range, rover, mars, bars, jaguar, cashmere, bouquet, goggomobil, dart.

 

Words generic words, just some I can think of that, according to you cannot be trademarked in the UK.

Better than my Bose, better than my Skullcandy's, listening to Mozart through my LeBron James limited edition PowerBeats by Dre is almost as good as my Sennheisers.
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post #32 of 46
Originally Posted by iSheldon View Post
No but you can buy apps from any app store and drugs from any drug store.

 

But just like drugs, not all apps are compatible with all platforms.

 

That was so flipping awesome. Thanks for the setup. Been a while since someone has so efficiently set up their own demise.

Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
Reply

Originally Posted by helia

I can break your arm if I apply enough force, but in normal handshaking this won't happen ever.
Reply
post #33 of 46
Quote:
Originally Posted by hill60 View Post

So the British can't trademark generic words...

 

...pears, range, rover, mars, bars, jaguar, cashmere, bouquet, goggomobil, dart.

 

Words generic words, just some I can think of that, according to you cannot be trademarked in the UK.

 

Only generic words related to the business.

 

Jaguar cars is allowed. Jaguar Zoo almost certainly would not. Mar bar chocolate is allowed. A store located on the planet Mars called Dave's Mars Store could not file for a Mars-based trademark.

 

And it's not the British who can't do this, it's any company asserting its IP in England. The Windows trademark has never been contested in England, AFAIK.

post #34 of 46
Apple should release something called AmazonTablet and see what Amazon has to say about that.
post #35 of 46

I just invented a slimmy product that I'm gonna trademark as GOO GLE.

post #36 of 46
Quote:
Originally Posted by rjlcool View Post

I just invented a slimmy product that I'm gonna (attempt to) trademark as GOO GLE.

Fixed. I wouldn't spend too time or money on the effort myself.  :)

melior diabolus quem scies
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post #37 of 46
Quote:
Originally Posted by RichL View Post

 

The phase "killer app" has existed for almost as long as personal computers themselves. Wikipedia says that its origins are with VisiCalc on the Apple II, way back in 1983.

 

Wikipedia doesn't say anything of the kind, despite your inclusion of a link that purports to support that claim.

post #38 of 46
Quote:
Originally Posted by Tallest Skil View Post

Really? I can buy prescription drugs from Apple? That sounds kind of illegal to me.

iPharmacy FTW! lol.gif

http://itunes.apple.com/us/app/ipharmacy-drug-guide-pill/id348702163?mt=8

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post #39 of 46
Quote:
Originally Posted by enjourni View Post

...The "windows" argument doesn't make sense IMHO, because "window" is a metaphor for an on-screen element, not an obvious description of what it is. Windows on a computer look nothing like windows in the real world. You could just as easily call them "squares" or "dialogs" or anything else. Microsoft decided to call them windows.

The word "window" was used to describe the rectangles on the screen prior to Microsoft's branding of "Windows".

 

If I open up a store that only sells high heel shoes, I would be able to trademark "Heel Store" assuming that it is not already trademarked.

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post #40 of 46
Quote:
Originally Posted by city View Post

The word "window" was used to describe the rectangles on the screen prior to Microsoft's branding of "Windows".

While that's true, it's not a good example. Most trademark experts agree that if Linux had continued to challenge that trademark that it would have been rejected. Microsoft was able to retain the trademark because they paid some Linux group (Lindows, IIRC) in order to settle. Up to the point of settlement, the trial wasn't going well for Microsoft - the appeals court had just handed them a major setback on an important issue.
"I'm way over my head when it comes to technical issues like this"
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