I agree that Apple has the upper hand. They made "apps" ubiquitous. Before that, there were applications and programs, but apps were barely a nickname.
Web apps? Please. They are web sites.
No one sold apps before the iPhone.
I'm in an IT department and we have referred to our Web development products as "apps" for at least a decade. A Web app is not a Web site.
Having said that, I think it's fair to say that Apple make the term mainstream with their "there's an app for that" catch phrase.
As I stated above. There are many generic terms that at one time were not generic but over time they have. Gas station, grocery store, used car lot ect....... At one time these terms were coined by a witty individual or company. No one was suing when "Joe's Used Car Lot" opened next to Bob' Used Car Lot.
Your examples were always generic - since there wasn't a 'used car' brand car.
Better examples would be... Aspirin, Escalator, Zipper, even Freeware.
Kleenex, Velcro, and Gortex are fighting to keep their names non-generic.
Is it really worth suing Amazon? That's a lot of free publicity they are going to get. Without it, their store might just wither on the vine of fragmentation.
I agree that Apple has the upper hand. They made "apps" ubiquitous. Before that, there were applications and programs, but apps were barely a nickname.
Web apps? Please. They are web sites.
No one sold apps before the iPhone.
Sure they did. Just because you hadn't heard the term before Apple doesn't mean it didn't exist.
I think this is the problem. People who work in I.T or with Apple have been using the term "App" for the better part of a decade. For those people "App" is a generic term.
However the general population didn't really catch on until Apple decided to use the term "App Store" to sell its apps.
I don't even know what happens here!!! Is there any precedent for a term that was in common usage among a population subgroup that was trademarked when it was taken mainstream?
I think another important factor to take into consideration is how heavily previous generic trademarks were challenged.
For example, if a term is in common usage in a population subgroup and I attempt to trademark it - the difference between my request being granted or denied may simply come down to how strongly my request was challenged.
OK straight to the source: USPTO website with the legal summaries as I cited in another thread a couple weeks ago (quote below).
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
Quote:
Originally Posted by Hiro
There is no "special list" of automagically excluded terms.
IANAL, but here is the USPTO's synopsis of the laws:
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:
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.
Amazon should come up with their name and ideas. Apple has no choice but to sue Amazon here if they want to protect their App Store name.
I wonder if amazon will stop selling kindle on iPad etc... Even though I like iBooks reading so much more... I did use my kindle app so much when I first got the iPad.
OK straight to the source: USPTO website with the legal summaries as I cited in another thread a couple weeks ago (quote below).
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
Your point has been presented many times in other articles too, but it hasbecome:
Yes Apple can!
No, they can't
kind of debate, and many detractors of Apple just chose to ignore the process.
The critical issue really is precedence, and the actual cases litigated. And, like most judicial decisions, they could be overturned or new regulations come into play.
A good example where policies is the patentability of DNA sequences being given blanket and overreaching patents to cover what are perceive patents. There were challenges to such overreaching patents already. Also, many in the scientific and biomedical community are beginning to realize the negative impact of such overreaching patents to stymie research and practical applications of such discoveries.
So, reforms are being considered.
Such changes may also be considered in trademarks.
I'm in an IT department and we have referred to our Web development products as "apps" for at least a decade. A Web app is not a Web site.
Having said that, I think it's fair to say that Apple make the term mainstream with their "there's an app for that" catch phrase.
Man, I hate to say it, but that kind of proves the point...IT types have been using the term for a decade and it doesn't reach the general public until Apple gets a hold of it?
OK straight to the source: USPTO website with the legal summaries as I cited in another thread a couple weeks ago (quote below).
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
You are correct. This should end this silly debate that Amazon even has a case.
Sure they did. Just because you hadn't heard the term before Apple doesn't mean it didn't exist.
I think this is the problem. People who work in I.T or with Apple have been using the term "App" for the better part of a decade. For those people "App" is a generic term.
However the general population didn't really catch on until Apple decided to use the term "App Store" to sell its apps.
I don't even know what happens here!!! Is there any precedent for a term that was in common usage among a population subgroup that was trademarked when it was taken mainstream?
I think another important factor to take into consideration is how heavily previous generic trademarks were challenged.
For example, if a term is in common usage in a population subgroup and I attempt to trademark it - the difference between my request being granted or denied may simply come down to how strongly my request was challenged.
The the pseudo-word "app" has been used as slang for "application" for many, many years, but that's irrelevant. Apple isn't trying to trademark "App"... it's trademarking the phrase "App Store", a phrase that wasn't used by others when Apple started using it.
EDIT: I also want to emphasize that (in my opinion) "app" is more of a pseudo-word, than a real, proper word in the English language. Therefore it has built-in novelty, which (to me) helps the phrase "App Store" overcome the 'not merely descriptive' stipulation of trademark law.
One problem is apps on phone are called apps, there isn't another name for them. Irruspective of what platform your using people still call them apps, and it's not like the term apps started with the iPhone's apps. Web Apps were availiable long before the app store existed. So now it becomes like trademarking the term "Shoe Store", but that's not to say you can't. In the UK there's a shop called "Eat" and another called "Game".
Crucially though and im not sure why it hasn't been mentioned but Amazon haven't called their app store "App Store", it's "Appstore". One word not two. In fact it's actually "Appstore for Android" but you get the idea. In some cases this may not make a difference but since we're dealing with a trademark thats using such generic words in their origional meaning it could make a huge difference.
The iPad and iPhone are closed systems. Users can not purchase from Amazon's Appstore for Android if they wanted to. How can there be any confusion if apple users are locked to one location for purchasing? The whole point of trademarks is so people can not trade off your success, but if your customers can not purchase from the competion as is the case for Apple users, then Apples closed system will work against them in this case.
Never owned an iPhone or iPad, but if they come with a link or app pointing to the Apple App Store then there is even less chance of confusion. No confusion and no ability to purchase from wrong store = no case.
The iPad and iPhone are closed systems. Users can not purchase from Amazon's Appstore for Android if they wanted to. How can there be any confusion if apple users are locked to one location for purchasing? Absolutely ridiculous law suit IMO.
Never owned an iPhone or iPad, but if they come with a link to the Apple App Store then there is even less chance of confusion. No confusion, no case.
Apples closed system will work against them in this case.
I really, really, really wish people would stop commenting on topics they don't understand.
Where you can buy a product has absolutely nothing to do with whether it can be trademarked or not. Nada. Zilch. Zip.
[QUOTE=halfyearsun;1832753]Man, I hate to say it, but that kind of proves the point...IT types have been using the term for a decade and it doesn't reach the general public until Apple gets a hold of it?/QUOTE]
Where has the term 'App Store' been used for a decade? THAT is the trademark, not 'app'.
You can't take a trademark apart and claim that since some pieces of it have been used before that the trademark shouldn't be granted. It doesn't work that way. The trademark is the word or phrase AS A WHOLE.
So unless you have evidence that "App Store" was in use before Apple started using it, you're argument is useless.
The the pseudo-word "app" has been used as slang for "application" for many, many years, but that's irrelevant. Apple isn't trying to trademark "App"... it's trademarking the phrase "App Store", a phrase that wasn't used by others when Apple started using it.
It's totally relevant if you actually read the post I was responding to. Eriamjh said app was "barely a nickname" before Apple and "Web Apps" are actually called "Web Sites".
It's also relevant in the conext of the original post in that both "App" and "Store" are generic terms. Whether "App Store" is or is not seen as generic depends on Apple's ability to prove in court that when people read "App Store" they don't think of a store that sells apps, but of the Apple App Store for iOS devices.
Quote:
Originally Posted by timgriff84
In fact it's actually "Appstore for Android" but you get the idea.
It's either that or "Amazon Appstore".
Maybe they should have called it Amazon App Store. As in a store for "Amazon Apps" (apps that have been vetted by Amazon).
Unless that falls under Apple's trademark as well, in which case I wonder what will happen when someone opens a Web App Store...
I was just watching a blackberry commercial yesterday and they were yapping about urban spoon, ONLY on the blackberry with app world (l o fucking l)
I thought to myself, could they BE any more obvious about copying Apple!?
But they won't get sued lol. They used app WORLD.
FFS these companies really need to start up an imagination department. It's getting embarrassing to watch what they come up with that clearly copies Apple. I think a lot of people over hype the level of copying being done, but clearly it's happening to a certain extent.
Where has the term 'App Store' been used for a decade? THAT is the trademark, not 'app'.
You can't take a trademark apart and claim that since some pieces of it have been used before that the trademark shouldn't be granted. It doesn't work that way. The trademark is the word or phrase AS A WHOLE.
So unless you have evidence that "App Store" was in use before Apple started using it, you're argument is useless.
You make a good point, but ultimately you also have to consider where the state of things are. No company got their hands on the name "hardware store" because it had been thrown around so much prior to that sort of level of trade marking or whatever. Here we have apps, which everyone recognizes as applications, being sold at an online store. App Store sounds generic as Hardware Store, but Apple is claiming it's theirs only.
Apple's right though, I think, even though it clearly is a very generic term. They will ultimately get the rights to "app store" and other companies will need to differentiate in some way. I like market place, because it really feels like a bunch of vendors are coming together in spot as opposed to a single store selling apps.
This has got to be the dumbest lawsuit I've seen in a while though. Not on Apple's part, but on the part of all these companies unable to come up with their own phrasing.
App World
App Library
App Marketplace
App Universe
App Sea
App Boutique
App Cafe
App Bar
App Place
App House
App Box
App Storage
App Database
I mean I literally didn't pause in making those up. I know they sound corny, but what the fuck difference does it make? It's still the same damn thing.
While I agree that Apple should be able to keep the App Store trademark, "Amazon Appstore" seems different from "App Store" to me, because Amazon is an extremely well known brand. Nobody would look at "Amazon Appstore" and think it's a part of Apple. It'd be viewed as a store affiliated with Amazon instead. On the other hand, if some company create a store selling apps and call that "My Appstore", or "Mobile Appstore", etc, then that shouldn't fly.
Apple Windows...
Microsoft should be able to keep the Windows trademark, "Apple Windows" seems different from "Windows" to me, because Apple is an extremely well known brand. Nobody would look at "Apple Windows" and think it's a part of Microsoft. It'd be viewed as an application affiliated with Apple instead.
Comments
No wonder the competition sucks, they have no history of upper brain activity.
I agree that Apple has the upper hand. They made "apps" ubiquitous. Before that, there were applications and programs, but apps were barely a nickname.
Web apps? Please. They are web sites.
No one sold apps before the iPhone.
I'm in an IT department and we have referred to our Web development products as "apps" for at least a decade. A Web app is not a Web site.
Having said that, I think it's fair to say that Apple make the term mainstream with their "there's an app for that" catch phrase.
As I stated above. There are many generic terms that at one time were not generic but over time they have. Gas station, grocery store, used car lot ect....... At one time these terms were coined by a witty individual or company. No one was suing when "Joe's Used Car Lot" opened next to Bob' Used Car Lot.
Your examples were always generic - since there wasn't a 'used car' brand car.
Better examples would be... Aspirin, Escalator, Zipper, even Freeware.
Kleenex, Velcro, and Gortex are fighting to keep their names non-generic.
I'm in an IT department and we have referred to our Web development products as "apps" for at least a decade. A Web app is not a Web site.
Having said that, I think it's fair to say that Apple make the term mainstream with their "there's an app for that" catch phrase.
NeXT was referring to apps back in 1989 when all their executables were App wrappers, ala .app.
Your department builds internal utilities. Apple sells a global App Store for 3rd party applications.
I agree that Apple has the upper hand. They made "apps" ubiquitous. Before that, there were applications and programs, but apps were barely a nickname.
Web apps? Please. They are web sites.
No one sold apps before the iPhone.
Sure they did. Just because you hadn't heard the term before Apple doesn't mean it didn't exist.
I think this is the problem. People who work in I.T or with Apple have been using the term "App" for the better part of a decade. For those people "App" is a generic term.
However the general population didn't really catch on until Apple decided to use the term "App Store" to sell its apps.
I don't even know what happens here!!! Is there any precedent for a term that was in common usage among a population subgroup that was trademarked when it was taken mainstream?
I think another important factor to take into consideration is how heavily previous generic trademarks were challenged.
For example, if a term is in common usage in a population subgroup and I attempt to trademark it - the difference between my request being granted or denied may simply come down to how strongly my request was challenged.
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
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 wonder if amazon will stop selling kindle on iPad etc... Even though I like iBooks reading so much more... I did use my kindle app so much when I first got the iPad.
OK straight to the source: USPTO website with the legal summaries as I cited in another thread a couple weeks ago (quote below).
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
Your point has been presented many times in other articles too, but it hasbecome:
Yes Apple can!
No, they can't
kind of debate, and many detractors of Apple just chose to ignore the process.
The critical issue really is precedence, and the actual cases litigated. And, like most judicial decisions, they could be overturned or new regulations come into play.
A good example where policies is the patentability of DNA sequences being given blanket and overreaching patents to cover what are perceive patents. There were challenges to such overreaching patents already. Also, many in the scientific and biomedical community are beginning to realize the negative impact of such overreaching patents to stymie research and practical applications of such discoveries.
So, reforms are being considered.
Such changes may also be considered in trademarks.
CGC
I'm in an IT department and we have referred to our Web development products as "apps" for at least a decade. A Web app is not a Web site.
Having said that, I think it's fair to say that Apple make the term mainstream with their "there's an app for that" catch phrase.
Man, I hate to say it, but that kind of proves the point...IT types have been using the term for a decade and it doesn't reach the general public until Apple gets a hold of it?
Edit: nod to firefly for making a similar point
OK straight to the source: USPTO website with the legal summaries as I cited in another thread a couple weeks ago (quote below).
Semi amazingly the fracas totally stopped in that thread as to whether or not generic terms can be used.
Stopped dead.
Maybe because the excerpts and links below totally blow the whole generic term issue to bits. As in, yes you can trademark terms that seem generic, as long as you do certain things first. Then you have to maintain them or lose them.
You are correct. This should end this silly debate that Amazon even has a case.
Sure they did. Just because you hadn't heard the term before Apple doesn't mean it didn't exist.
I think this is the problem. People who work in I.T or with Apple have been using the term "App" for the better part of a decade. For those people "App" is a generic term.
However the general population didn't really catch on until Apple decided to use the term "App Store" to sell its apps.
I don't even know what happens here!!! Is there any precedent for a term that was in common usage among a population subgroup that was trademarked when it was taken mainstream?
I think another important factor to take into consideration is how heavily previous generic trademarks were challenged.
For example, if a term is in common usage in a population subgroup and I attempt to trademark it - the difference between my request being granted or denied may simply come down to how strongly my request was challenged.
The the pseudo-word "app" has been used as slang for "application" for many, many years, but that's irrelevant. Apple isn't trying to trademark "App"... it's trademarking the phrase "App Store", a phrase that wasn't used by others when Apple started using it.
EDIT: I also want to emphasize that (in my opinion) "app" is more of a pseudo-word, than a real, proper word in the English language. Therefore it has built-in novelty, which (to me) helps the phrase "App Store" overcome the 'not merely descriptive' stipulation of trademark law.
Crucially though and im not sure why it hasn't been mentioned but Amazon haven't called their app store "App Store", it's "Appstore". One word not two. In fact it's actually "Appstore for Android" but you get the idea. In some cases this may not make a difference but since we're dealing with a trademark thats using such generic words in their origional meaning it could make a huge difference.
Never owned an iPhone or iPad, but if they come with a link or app pointing to the Apple App Store then there is even less chance of confusion. No confusion and no ability to purchase from wrong store = no case.
The iPad and iPhone are closed systems. Users can not purchase from Amazon's Appstore for Android if they wanted to. How can there be any confusion if apple users are locked to one location for purchasing? Absolutely ridiculous law suit IMO.
Never owned an iPhone or iPad, but if they come with a link to the Apple App Store then there is even less chance of confusion. No confusion, no case.
Apples closed system will work against them in this case.
I really, really, really wish people would stop commenting on topics they don't understand.
Where you can buy a product has absolutely nothing to do with whether it can be trademarked or not. Nada. Zilch. Zip.
[QUOTE=halfyearsun;1832753]Man, I hate to say it, but that kind of proves the point...IT types have been using the term for a decade and it doesn't reach the general public until Apple gets a hold of it?/QUOTE]
Where has the term 'App Store' been used for a decade? THAT is the trademark, not 'app'.
You can't take a trademark apart and claim that since some pieces of it have been used before that the trademark shouldn't be granted. It doesn't work that way. The trademark is the word or phrase AS A WHOLE.
So unless you have evidence that "App Store" was in use before Apple started using it, you're argument is useless.
The the pseudo-word "app" has been used as slang for "application" for many, many years, but that's irrelevant. Apple isn't trying to trademark "App"... it's trademarking the phrase "App Store", a phrase that wasn't used by others when Apple started using it.
It's totally relevant if you actually read the post I was responding to. Eriamjh said app was "barely a nickname" before Apple and "Web Apps" are actually called "Web Sites".
It's also relevant in the conext of the original post in that both "App" and "Store" are generic terms. Whether "App Store" is or is not seen as generic depends on Apple's ability to prove in court that when people read "App Store" they don't think of a store that sells apps, but of the Apple App Store for iOS devices.
In fact it's actually "Appstore for Android" but you get the idea.
It's either that or "Amazon Appstore".
Maybe they should have called it Amazon App Store. As in a store for "Amazon Apps" (apps that have been vetted by Amazon).
Unless that falls under Apple's trademark as well, in which case I wonder what will happen when someone opens a Web App Store...
I thought to myself, could they BE any more obvious about copying Apple!?
But they won't get sued lol. They used app WORLD.
FFS these companies really need to start up an imagination department. It's getting embarrassing to watch what they come up with that clearly copies Apple. I think a lot of people over hype the level of copying being done, but clearly it's happening to a certain extent.
Where has the term 'App Store' been used for a decade? THAT is the trademark, not 'app'.
You can't take a trademark apart and claim that since some pieces of it have been used before that the trademark shouldn't be granted. It doesn't work that way. The trademark is the word or phrase AS A WHOLE.
So unless you have evidence that "App Store" was in use before Apple started using it, you're argument is useless.
You make a good point, but ultimately you also have to consider where the state of things are. No company got their hands on the name "hardware store" because it had been thrown around so much prior to that sort of level of trade marking or whatever. Here we have apps, which everyone recognizes as applications, being sold at an online store. App Store sounds generic as Hardware Store, but Apple is claiming it's theirs only.
Apple's right though, I think, even though it clearly is a very generic term. They will ultimately get the rights to "app store" and other companies will need to differentiate in some way. I like market place, because it really feels like a bunch of vendors are coming together in spot as opposed to a single store selling apps.
This has got to be the dumbest lawsuit I've seen in a while though. Not on Apple's part, but on the part of all these companies unable to come up with their own phrasing.
App World
App Library
App Marketplace
App Universe
App Sea
App Boutique
App Cafe
App Bar
App Place
App House
App Box
App Storage
App Database
I mean I literally didn't pause in making those up. I know they sound corny, but what the fuck difference does it make? It's still the same damn thing.
While I agree that Apple should be able to keep the App Store trademark, "Amazon Appstore" seems different from "App Store" to me, because Amazon is an extremely well known brand. Nobody would look at "Amazon Appstore" and think it's a part of Apple. It'd be viewed as a store affiliated with Amazon instead. On the other hand, if some company create a store selling apps and call that "My Appstore", or "Mobile Appstore", etc, then that shouldn't fly.
Apple Windows...
Microsoft should be able to keep the Windows trademark, "Apple Windows" seems different from "Windows" to me, because Apple is an extremely well known brand. Nobody would look at "Apple Windows" and think it's a part of Microsoft. It'd be viewed as an application affiliated with Apple instead.