MS has not ever trademarked the word windows. It HAS, however, trademarked "Microsoft Windows". Apple's argument is specious at best. If they want to TM "Apple App Store" or "iOS App Sore" and "Mac App Store" I can't imagine that this would be too problematic. They just want MS and Google to stop using the phrase App Store for their, well, app stores. Nonsense.
Oh yes, they did.
And they used it in court - the best example is this:
Don't let your ignorance of copyright and trademark laws become the foundation of your hate for Apple, or any company
As noted in previous post, copyright and trademark laws in the US and the world, allow the copyright of a word, to brand itself in a given field, if no one has copyrighted it yet.
IBM -- may have different meanings, but the original International Business Machine (IBM), has trademark "IBM" so no one is allow to use it, as a trademark
At the same time, a company cannot claim automatic trademark of a word, even if it the first to create or coin it, as was the case with the term "Aspirin" (see previous post).
Then, there is the creation of a "new term" to convey a different meaning altogether
Face and book may be generic words, but "Facebook" is a new term
And, so is "App Store" (see above)
CGC
Wow, your post is really ironic, given that you called someone else ignorant. Most of what you wrote is incorrect. Really, just read the basics at http://www.uspto.gov/ and you'll see how far off you really are.
Windows is trademarked (with registration #1872264) because it's not a generic term for an operating system. This is why anyone else can still use the word windows in describing windows. It's a very fine distinction, but relevant. See the 1990 filing:
IC 009. US 038. G & S: computer programs and manuals sold as a unit; namely, graphical operating environment programs for microcomputers.
The App Store is a lot more generic in Apple's usage because it's an app store that's being called App Store. If Microsoft was selling glass panels and calling them Windows, that would be a more relevant comparison.
Apple's better argument is whether when people hear App Store, do they think Apple's App Store, or are other stores considered? Do people use the term Android App Store or Android Marketplace, or for that matter Microsoft, RIM, Nokia, etc...?
I am (finally) in my last semester of law school, and just happen to be writing my seminar paper on Art Law, of which copyright and trademark are a big part.
Many prior posters have rubbed up against the salient issues, but I'm not sure I read any posts that put them all together. Remember, I'm just a lowly law student, and until I pass the Bar Exam I'm just another layperson with an opinion, so please take it with the proverbial grain of salt.
When a company wishes to enforce a trademark that consists of ordinary words that are not "fanciful," among other colorful adjectives, they may do so only if the mark has achieved "secondary meaning."
For instance, McDonald's, although presumably a person's name, would almost certainly be able to prevent another food company from using the name McDonald's. If a company that was not in the food business wanted to use the term McDonald's courts would look to see if the trademark holder was likely to "bridge the gap" between the business it is in, and the business of the company seeking to use the trademarked name. If a deep fryer company, for example, wanted to call itself "McDonald's" they may have a problem, since it is conceivable that McDonald's restaurants could end up in the business of building and selling the type of equipment it uses in its many stores. If there was a "McDonald's" car company, however, it seems inconceivable that the restaurant would have any colorable claim against them.
The polestar of this issue is customer confusion. With regard to Microsoft and Apple, it seems as though consumer confusion is not only reasonably possible, but also almost guarantied. Particularly since Apple has target less sophisticated consumers in addition to the usual geek-crowd, the notion of people walking into stores and mistakingly buying a WP7 device because the salesperson said "it can run apps from the App Store."
At the end of the day, in my humble opinion, there are three questions to be answered in resolving this issue:
1. Is "App Store" a fanciful mark, or merely a descriptive or generic mark; and,
2. If it is NOT fanciful, then has it acquired secondary meaning; and,
3. If it HAS acquired secondary meaning would Microsoft's use thereof likely result in customer confusion?
It seems to me that the first element is going to be difficult for Apple, and thus they will have to prove secondary meaning, which may also be very difficult. The third prong, I believe, will be very easy for Apple to prove, but that will not matter if as a matter of law "App Store" is not trademark able.
Go and create an operating system, include the word "Windows" in the name, then try to sell it. Let us know how long it took Microsoft to sue the pants off you
I think Apple should be able to keep the trademark 'App Store', but other companies should also be able to call their mobile apps 'apps', just not their app store 'App Store'. 'App' is generic, but 'App Store' IMO isn't.
Well, there's a first time for everything, i suppose.
Considering that M$ has always copied others, and never really originated anything themselves, it would be a first if they ever inspired Apple.
Oh, we understand the concept. It's just has never applied to M$. In fact, it can be argued that M$, by trying to spread their monopolistic hold over the computer world, has done exactly the opposite. They literally plunged the world of technology into the dark ages in the 1990s. Finally, the long, dark winter is over, and creativity is blooming once again. And that revolution is being led by Apple.
The only innovation M$ has ever shown is how to stifle competition, or how to make poor quality knock-offs of the hard work of other companies.
I always chuckle when some says M$ is innovative.
Of course Apple used the term Windows in this regard well before M$ copied the Mac OS and brought M$ Windows to the market.
If you're saying "operating system" is synonymous with WIndows, you are mistaken. But if you're saying M$ Windows is an example of an operating system, as is Mac OS X, Linux, Unix, VMS, RSTS/11, etc., then you are correct.
An operating system is that layer of software which controls the hardware, and allocates resources. In modern years, it tends to include application frameworks and other APIs. Strictly speaking, it's not about a user interface (although in recent years, many people perceive it to be just that).
You know, "smartly" using $ instead of S in MS is really getting old and boring... a bit more maturity would be beneficial.
Well, we are going in circles here, but I'll put one in...
I'm not sure what you mean by a "linguistic concept" but nobody is arguing that Apple owns the term "app" or the term "store." It is in putting the two together for a place to buy programs for mobile devices that (as far as I can tell) nobody has any evidence of being used before Apple started doing it.
If this is indeed a unique usage of those two common terms, then it is trademarkable. The fact that the term seems obvious in hindsight (mostly because Apple's own use of it has been massively popular) does not mean that Apple cannot trademark the combined term.
No. I don't think so. Let's pretend McDonald's was the first to use the phrase "fast food restaurant." This does not mean McDonald's owns the term "fast food restaurant." It is a generic business term.
"App Store" was originally uttered by 1 company, Apple. "Keyboard" was probably also coined by one person or company. "Interface" also. "App store" was a clever development by Apple Inc. I agree Apple pioneered the concept. But "App store" is much like "computer store" or "gas station." It is a fundamental part of our language. It is first and foremost a word. Apple coined it. Unfortunately for Apple, its role as a generic word supercedes their wish for exclusivity.
Microsoft DOES NOT have rights to the word "Window." "Windows" with an 's' is clearly a Microsoft term that is a proper name. There is a difference between a proper name and a generic noun. Apple coined a generic noun. It is part of the English language now.
It is without merit to claim Apple has an exclusive right to the App Store term and business model. Almost.... but no.
To my knowledge, unless you can prove otherwise, the term "App Store" is not in wide use before Apple filed its trademark application. It does not matter if "App" and "Store" are generic terms
Not that the "before Apple filed its trademark application" is relevant, but...
Proof:
Apple filed its trademark application on July 17, 2008. Run a time bound Google search showing everything before that date and you'll see others using the phrase "app store" in context:
Not all results will be relevant, but you can clearly see it's been in use prior to the trademark application. Apple itself registered the domain name appstore.com in 1998.
There was even a registered trademark filed in 1998 for APPSTORE under the same classification and description (abandoned in 2000).
But the main point here is whether "App Store" is generic in context. Comparing it to Windows is foolish because Windows isn't generic in context. It would be if Microsoft was selling glass panels.
Do a Google search for:
"app store" -apple -itunes -iphone -ios -ipad
You'll see 1,230,000 results. That's over a million online references to "app store" that don't contain the words Apple, iTunes, iPhone, iOS, or iPad.
Take a look at what people are searching for. Android named their store "Android Market", but yet, monthly there are 49,500 searches on Google for "Android App Store". This doesn't even take into account all the various other searches people may have done. If you break it down to include Android Apps or Android Store variations, you get over 3 million searches each month, more than twice the number searching for Android Market.
It seems to me that "App Store" has become generic in context, and Apple's legal team is going to have to really fight hard for this. Although I can see the business case for doing so.
Oh, puh-leeze. Nobody ever even used the term "App" until Apple popularized it. Windows users never even called their programs "applications" -- they always called them "Programs" or "Program Files". Even Apple themselves didn't use the word "App" until the iPhone came out. Apple invented this word and they deserve the right to use it... nobody else.
Go, Apple!!
As a Mac user it's always been "Applications" or "Apps" (which many of us have been abbreviating it to for a very long time...) For Windows users it was ALWAYS "software" or "programs." Whenever I've referred to a Mac app as an "application" when talking to a Windows user, I would get a blank, uncomprehending stare.
Windows has zero claim to "App," generic or otherwise.
the notion of people walking into stores and mistakingly buying a WP7 device because the salesperson said "it can run apps from the App Store."
Excellent post. I attended law school and in business have had to study trademark law quite a bit. I'm not a lawyer either. I love a good debate though.
I agree with everything you wrote. This point though... I would argue that just the opposite would occur. It wouldn't be that people would be buying WP7 or Android phones, thinking that they worked with the Apple App Store, but rather there would be awkwardness and confusion in calling their stores anything else, as that's what people seem to be calling stores that sell apps (see my earlier post with Google results).
I've pointed this out before - all of these Jonny-come-lately phone companies are simply stealing Apple's choice of name because only Apple has had the convention of calling them Applications over decades - PC makers always called them programmes and until Apple nobody imagined programmes on a phone so they took the cue from Apple. Always easier to copy than innovate!
Comments
MS has not ever trademarked the word windows. It HAS, however, trademarked "Microsoft Windows". Apple's argument is specious at best. If they want to TM "Apple App Store" or "iOS App Sore" and "Mac App Store" I can't imagine that this would be too problematic. They just want MS and Google to stop using the phrase App Store for their, well, app stores. Nonsense.
Oh yes, they did.
And they used it in court - the best example is this:
http://en.wikipedia.org/wiki/Microsoft_v._Lindows
Don't let your ignorance of copyright and trademark laws become the foundation of your hate for Apple, or any company
As noted in previous post, copyright and trademark laws in the US and the world, allow the copyright of a word, to brand itself in a given field, if no one has copyrighted it yet.
IBM -- may have different meanings, but the original International Business Machine (IBM), has trademark "IBM" so no one is allow to use it, as a trademark
At the same time, a company cannot claim automatic trademark of a word, even if it the first to create or coin it, as was the case with the term "Aspirin" (see previous post).
Then, there is the creation of a "new term" to convey a different meaning altogether
Face and book may be generic words, but "Facebook" is a new term
And, so is "App Store" (see above)
CGC
Wow, your post is really ironic, given that you called someone else ignorant. Most of what you wrote is incorrect. Really, just read the basics at http://www.uspto.gov/ and you'll see how far off you really are.
Windows is trademarked (with registration #1872264) because it's not a generic term for an operating system. This is why anyone else can still use the word windows in describing windows. It's a very fine distinction, but relevant. See the 1990 filing:
IC 009. US 038. G & S: computer programs and manuals sold as a unit; namely, graphical operating environment programs for microcomputers.
The App Store is a lot more generic in Apple's usage because it's an app store that's being called App Store. If Microsoft was selling glass panels and calling them Windows, that would be a more relevant comparison.
Apple's better argument is whether when people hear App Store, do they think Apple's App Store, or are other stores considered? Do people use the term Android App Store or Android Marketplace, or for that matter Microsoft, RIM, Nokia, etc...?
Good points!
I would be happy for Apple to give up the App Store when MSFT gives up Windows.
Mac OS - the Original Windows OS!
(commercially available that is)
Shouldn't Apple in that case have to give name "Apple"?
No way! I want MS to always get better, and bring us better stuff, so that companies like Apple respond with even BETTER stuff.
Why don't clueless Apple fanboys understand the success of other companies is good for everyone!?
Because 10+ years ago, success of OTHER company almost killed their company.
So default hostility towards other's success has become sort of instinct, a part of genetic code (not literally, of course).
Just a theory
Many prior posters have rubbed up against the salient issues, but I'm not sure I read any posts that put them all together. Remember, I'm just a lowly law student, and until I pass the Bar Exam I'm just another layperson with an opinion, so please take it with the proverbial grain of salt.
When a company wishes to enforce a trademark that consists of ordinary words that are not "fanciful," among other colorful adjectives, they may do so only if the mark has achieved "secondary meaning."
For instance, McDonald's, although presumably a person's name, would almost certainly be able to prevent another food company from using the name McDonald's. If a company that was not in the food business wanted to use the term McDonald's courts would look to see if the trademark holder was likely to "bridge the gap" between the business it is in, and the business of the company seeking to use the trademarked name. If a deep fryer company, for example, wanted to call itself "McDonald's" they may have a problem, since it is conceivable that McDonald's restaurants could end up in the business of building and selling the type of equipment it uses in its many stores. If there was a "McDonald's" car company, however, it seems inconceivable that the restaurant would have any colorable claim against them.
The polestar of this issue is customer confusion. With regard to Microsoft and Apple, it seems as though consumer confusion is not only reasonably possible, but also almost guarantied. Particularly since Apple has target less sophisticated consumers in addition to the usual geek-crowd, the notion of people walking into stores and mistakingly buying a WP7 device because the salesperson said "it can run apps from the App Store."
At the end of the day, in my humble opinion, there are three questions to be answered in resolving this issue:
1. Is "App Store" a fanciful mark, or merely a descriptive or generic mark; and,
2. If it is NOT fanciful, then has it acquired secondary meaning; and,
3. If it HAS acquired secondary meaning would Microsoft's use thereof likely result in customer confusion?
It seems to me that the first element is going to be difficult for Apple, and thus they will have to prove secondary meaning, which may also be very difficult. The third prong, I believe, will be very easy for Apple to prove, but that will not matter if as a matter of law "App Store" is not trademark able.
That is a good point.
lol no.
Go and create an operating system, include the word "Windows" in the name, then try to sell it. Let us know how long it took Microsoft to sue the pants off you
Well, there's a first time for everything, i suppose.
Considering that M$ has always copied others, and never really originated anything themselves, it would be a first if they ever inspired Apple.
Oh, we understand the concept. It's just has never applied to M$. In fact, it can be argued that M$, by trying to spread their monopolistic hold over the computer world, has done exactly the opposite. They literally plunged the world of technology into the dark ages in the 1990s. Finally, the long, dark winter is over, and creativity is blooming once again. And that revolution is being led by Apple.
The only innovation M$ has ever shown is how to stifle competition, or how to make poor quality knock-offs of the hard work of other companies.
I always chuckle when some says M$ is innovative.
Of course Apple used the term Windows in this regard well before M$ copied the Mac OS and brought M$ Windows to the market.
If you're saying "operating system" is synonymous with WIndows, you are mistaken. But if you're saying M$ Windows is an example of an operating system, as is Mac OS X, Linux, Unix, VMS, RSTS/11, etc., then you are correct.
An operating system is that layer of software which controls the hardware, and allocates resources. In modern years, it tends to include application frameworks and other APIs. Strictly speaking, it's not about a user interface (although in recent years, many people perceive it to be just that).
You know, "smartly" using $ instead of S in MS is really getting old and boring... a bit more maturity would be beneficial.
"Having itself faced a decades-long genericness...
Please, someone, pinch me. That's the most I've laughed all week.
What about 'Gates'? That's generic.
Well, we are going in circles here, but I'll put one in...
I'm not sure what you mean by a "linguistic concept" but nobody is arguing that Apple owns the term "app" or the term "store." It is in putting the two together for a place to buy programs for mobile devices that (as far as I can tell) nobody has any evidence of being used before Apple started doing it.
If this is indeed a unique usage of those two common terms, then it is trademarkable. The fact that the term seems obvious in hindsight (mostly because Apple's own use of it has been massively popular) does not mean that Apple cannot trademark the combined term.
No. I don't think so. Let's pretend McDonald's was the first to use the phrase "fast food restaurant." This does not mean McDonald's owns the term "fast food restaurant." It is a generic business term.
"App Store" was originally uttered by 1 company, Apple. "Keyboard" was probably also coined by one person or company. "Interface" also. "App store" was a clever development by Apple Inc. I agree Apple pioneered the concept. But "App store" is much like "computer store" or "gas station." It is a fundamental part of our language. It is first and foremost a word. Apple coined it. Unfortunately for Apple, its role as a generic word supercedes their wish for exclusivity.
Microsoft DOES NOT have rights to the word "Window." "Windows" with an 's' is clearly a Microsoft term that is a proper name. There is a difference between a proper name and a generic noun. Apple coined a generic noun. It is part of the English language now.
It is without merit to claim Apple has an exclusive right to the App Store term and business model. Almost.... but no.
Please, someone, pinch me. That's the most I've laughed all week.
What about 'Gates'? That's generic.
And "Jobs"... I think we're onto something.
To my knowledge, unless you can prove otherwise, the term "App Store" is not in wide use before Apple filed its trademark application. It does not matter if "App" and "Store" are generic terms
Not that the "before Apple filed its trademark application" is relevant, but...
Proof:
Apple filed its trademark application on July 17, 2008. Run a time bound Google search showing everything before that date and you'll see others using the phrase "app store" in context:
http://www.google.com/search?q=%22ap...17%2F2008&tbm=
Not all results will be relevant, but you can clearly see it's been in use prior to the trademark application. Apple itself registered the domain name appstore.com in 1998.
There was even a registered trademark filed in 1998 for APPSTORE under the same classification and description (abandoned in 2000).
But the main point here is whether "App Store" is generic in context. Comparing it to Windows is foolish because Windows isn't generic in context. It would be if Microsoft was selling glass panels.
Do a Google search for:
"app store" -apple -itunes -iphone -ios -ipad
You'll see 1,230,000 results. That's over a million online references to "app store" that don't contain the words Apple, iTunes, iPhone, iOS, or iPad.
Take a look at what people are searching for. Android named their store "Android Market", but yet, monthly there are 49,500 searches on Google for "Android App Store". This doesn't even take into account all the various other searches people may have done. If you break it down to include Android Apps or Android Store variations, you get over 3 million searches each month, more than twice the number searching for Android Market.
It seems to me that "App Store" has become generic in context, and Apple's legal team is going to have to really fight hard for this. Although I can see the business case for doing so.
Oh, puh-leeze. Nobody ever even used the term "App" until Apple popularized it. Windows users never even called their programs "applications" -- they always called them "Programs" or "Program Files". Even Apple themselves didn't use the word "App" until the iPhone came out. Apple invented this word and they deserve the right to use it... nobody else.
Go, Apple!!
As a Mac user it's always been "Applications" or "Apps" (which many of us have been abbreviating it to for a very long time...) For Windows users it was ALWAYS "software" or "programs." Whenever I've referred to a Mac app as an "application" when talking to a Windows user, I would get a blank, uncomprehending stare.
Windows has zero claim to "App," generic or otherwise.
Not if you're not only an Apple consumer, but a shareholder too......
success of other companies is a good thing regardless of one's classification.
the notion of people walking into stores and mistakingly buying a WP7 device because the salesperson said "it can run apps from the App Store."
Excellent post. I attended law school and in business have had to study trademark law quite a bit. I'm not a lawyer either. I love a good debate though.
I agree with everything you wrote. This point though... I would argue that just the opposite would occur. It wouldn't be that people would be buying WP7 or Android phones, thinking that they worked with the Apple App Store, but rather there would be awkwardness and confusion in calling their stores anything else, as that's what people seem to be calling stores that sell apps (see my earlier post with Google results).
Steve Balmer is an idiot. No talent, only threatening and buying products he doesn't understand. When will the Board of Directors fire this moron?
M$, seriously, please don't fire him. On the contrary, without this iconic-idiotic moron where will be our source of entertainment?
Don't give Google any ideas.
I am thinking Wovel Windows has a nice ring to it.