If 'App Store' trademark is generic, so is Microsoft's 'Windows,' Apple argues

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  • Reply 101 of 151
    wovelwovel Posts: 956member
    Quote:
    Originally Posted by Stourque View Post


    Don't give Google any ideas.



    I am thinking Wovel Windows has a nice ring to it.
  • Reply 102 of 151
    macrulezmacrulez Posts: 2,455member
    deleted
  • Reply 103 of 151
    nikon133nikon133 Posts: 2,600member
    Quote:
    Originally Posted by Ridley182 View Post


    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



    The way I see it, Windows is the name and Operating System is description.



    So I cannot call my OS Windows, but I can create, say, Nikos Operating System, shortly NikOS



    The way I see it, App Store is not a name but description. An equivalent to Operating System, or OS, rather than equivalent to Windows in this case. Not being able to use App Store is like not being able to use OS, which doesn't make much sense. It still needs a name. Even if that name is general word - like Windows or Apple - it does add distinction to generic description.
  • Reply 104 of 151
    nikon133nikon133 Posts: 2,600member
    Quote:
    Originally Posted by Banalltv View Post


    Please, someone, pinch me. That's the most I've laughed all week.



    What about 'Gates'? That's generic.



    Is it more generic than "Jobs"?
  • Reply 105 of 151
    wovelwovel Posts: 956member
    Quote:
    Originally Posted by macslut View Post


    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.



    I do not plainly see that, I do not see the term "app store" (the actual thing Apple is wanting to trademark), anywhere in the first five pages.

    Quote:

    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.



    All of the first ten pages prove why Apple needs and deserves the protection of a trademark..Every single link is some knockoff App store, created after Apple made theirs.

    [/quote]
    Quote:

    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.



    Historically making someones trademark generic has taken decades and is a pretty steep legal hill to climb. The fact that people used App Marketplace and Web App prior to the Apple store just shows the App Store name is a novel use..
  • Reply 106 of 151
    ernstcsernstcs Posts: 27member
    Don't care policy.



    If whatever it is you named it works, cool, if not...too bad, and no one will buy it anyway. No one gives a crap what the name of a product really is.



    I'm fine with a company having the rights to a particular name, but products I could care less about...



    If your branding is good it won't matter much.
  • Reply 107 of 151
    cgc0202cgc0202 Posts: 624member
    Quote:
    Originally Posted by _Hawkeye_ View Post


    But the people to whom i was responding were.







    No, some were suggesting that App is too generic to be trademarked. But in fact, Apple coined the term, so they would have a right to argue that it isn't a generic term. Please try to follow the discussion.







    WTF? Apple coined the term App. If anybody has a right to trademark App Store, it's Apple.





    Apple's point - indeed the whole point of this article - is that the same logic applies to the term Windows.



    Remember Apple popularized the term Windows with respect to UI long ago, before M$ ever developed their "Windows" OS.



    Actually, that's why I entered the discussion. Even if Apple coined the term "App", as you claim, that was so long time ago. And, it may not be enough to pass muster trademark rules. Read example about Bayer losing trademark claim to the term "aspirin", even if it was the first to manufacture the product, it lost the case. Everyone uses the term aspirin gnerrically now because Bayer did not protect its trademark within the time frame required by trademark protection policies.





    On the other hand, the term, "App Store" which is what Apple has applied trademark protection is a new "coinage" that was associated with Apple.



    The "App Store" became very popular term, and it has become associated with Apple almost immediately. That it became the case has no bearing on the trademark application.



    Because, from the record of application, if this article and related articles are correct -- Apple applied for trademark protection withhin the time-frame allowed by trademark laws.



    Nitwidthstanding the complaint by Microsoft that term is quite popular now, it should not affect the decision of the US Patent Office. Unless, of course, the reviewer is an Apple hater.



    CGC
  • Reply 108 of 151
    hiker275hiker275 Posts: 53member
    Quote:
    Originally Posted by LuisDias View Post


    I mean wow. Now a company can't use a name like "market" for their own market of applications? In no time no other company can't even build a market, for they will end out of words to use! This is outrageously ridiculous, to buy off the dictionary like this. We, as a species, are insane.



    No. We're not really insane... just stooopid.... and the cancer of the planet.
  • Reply 109 of 151
    swiftswift Posts: 436member
    Quote:
    Originally Posted by Fergiej View Post


    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.



    You know, I never, ever remember installing a Windows application that I, or anybody else, called an "app."



    And I think there was some effort by Microsoft to trademark the word "Windows." Their wrist got slapped.
  • Reply 110 of 151
    cgc0202cgc0202 Posts: 624member
    Quote:
    Originally Posted by macslut View Post


    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.



    The time of application matters. ... it can establish precedence if there was no registered trademark like the application, at the time the application was made. A company may be able to submit the history of the coinage of the term.



    Read US [Copyright], Patents and Trademark laws., including the FAQs There are slight variations in other countries, that is why a company has to apply to similar agencies in other countries or some blacnket international agency that serve the affiliated countries.



    Google Search




    The Google search you provided is garbage. You have to understand the algoritjm of Google search. It will pick any publication that will include "any" of the words in the search, sometimes even those remotely related. Also, because Google is more into hooking you into companies that advertise or paid placement to them, they would include sites that would not even be relevant to the context of your search terms. And, if you have done enough search, the same website may be linked a "thousand times". This flaw in Google search is the reason why some new search algoritms are trying to find more smart ways of searching. It remains to be seen whether they would be compelling enough to displace Google. Further, Google realizes the flaw of its search algorithm, so it has made changes, including one recently, to stave being appended by other newer search algorithms, e.g. Blekko.



    Can you point to me any specifc link that use the coiage "App Store"?



    Apple is applying a trademark for "App Store", not "App", not "Store", not even "APPSTORE", but "App Store". It won't matter if "Blackberry Store" or "________ Store" existed before the application.



    Note that Apple may have trademark protection for "Apple Store" which would be considered a different trademark from "App Store".



    And, even if there was any, did any prior company attempt to trademark protect it?



    Obviously, you do not understand trademark laws as well... the trademark Levi's blue jeans is protected. Just slight variations in the blue jeans design "can" and has been protected. So, as far as the Trademark rules are concerned, the word "APPSTORE" is not the same as "App Store", just like the Beatles cannot claim infringement when "Apple, Inc" was registered as a trademark even if the Beatles has trademark rights on the "Apple" related to music. On the other hand, Apple has to settle with the Beatles when Apple tried to assoicated the simplified "Apple" logo to Apple iTunes music. It could have fought the Beatles, because the simplified "Apple" logo is different enough from the Apple music logo of the Beatles, but Apple decided to settle because it so coveted to market the albums of the Beatles.



    The term Windows is commonly used, but the term Windows, as it applies to operating systems is not generic. That is the basis for comparison, however foolish you may think it is.



    Finally, the issue will be decided by the copyright, patent and trademark office in the US, and their counterparts, internationally. How it would come out would be in the hands of reviewers and the committee that would make the final approval (although usually based on the reviewers recommendation). Since they are human, they may be influenced by their personal perspectives or the depth of their expertise in a given field. This is where challenges matter and the willingness of a company or individual to contest a decision.





    CGC
  • Reply 111 of 151
    swiftswift Posts: 436member
    Quote:
    Originally Posted by nikon133 View Post


    The way I see it, Windows is the name and Operating System is description.



    So I cannot call my OS Windows, but I can create, say, Nikos Operating System, shortly NikOS



    The way I see it, App Store is not a name but description. An equivalent to Operating System, or OS, rather than equivalent to Windows in this case. Not being able to use App Store is like not being able to use OS, which doesn't make much sense. It still needs a name. Even if that name is general word - like Windows or Apple - it does add distinction to generic description.



    Does the way you see it have anything to do with Microsoft attempting to use it? Just asking.



    It seems to me that you could make an OS named, Niko's Windowing System, or somesuch. You could not use Windows as the name.... or I'd put it on the market and duck, because you'd be hit by an infringement suit. When you say something like, "Open the window and choose the file" in directions for Linux, or MacOS, or whatever, that's the "descriptive" term of which you speak. The capital in "Windows" means it's a brand identifier.
  • Reply 112 of 151
    jragostajragosta Posts: 10,473member
    Quote:
    Originally Posted by Ridley182 View Post


    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



    Actually, it might not be a bad strategy.



    When Microsoft sued Lindows for trademark abuse, they ended up settling out of court by paying Lindows $20 M dollars because of their fear that the Windows trademark would be lost if they went to court.

    http://en.wikipedia.org/wiki/Microsoft_v._Lindows
  • Reply 113 of 151
    ecphorizerecphorizer Posts: 533member
    Quote:
    Originally Posted by cmf2 View Post


    So I could create and sell an OS called "______ Windows" as long as I didn't fill in the blank with Microsoft? I kind of doubt that.



    Yep. Remember Michael Robertson of Lindows fame a few years ago?



    http://en.wikipedia.org/wiki/Microsoft_v._Lindows
  • Reply 114 of 151
    Did the common use of "App Store" to refer to an online software download service predate Apple's use of the term?
  • Reply 115 of 151
    cgc0202cgc0202 Posts: 624member
    Quote:
    Originally Posted by jetlaw View Post




    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.



    Since you used your law background, it would make more sense if you cite specific provisions in the copyright, patent and trademark law relevant to each point. And, as important, examples of what was accepted as well as those rejected based to clarify the law.



    It is also evolving. During the height of the biotech craze here in the US, the US Patents Office allowed patenting of DNA sequences which gave powers for biotech companies to dictate how derivative substances were subsequently used. There was a backlash to this. And, some NGOs and Indian institutions have successfully challenged some of these excesses.



    What can be trademark is even more nuanced, especially in design and logos. For example, a pocket is obvious to be part of a pants, shirts, etc. The concept of pockets, or the generic design of pockets would not cover other designs of pockets that makes a product design to be patentable.



    To relate this to your response post, the company applying for a trademark must ensure that its use of a term or design has acquired a distinct context relevant to their product or service. Thus, "Apple Store" is differnet from "App Store", both can be protected by trademark



    CGC
  • Reply 116 of 151
    bwikbwik Posts: 564member
    Quote:
    Originally Posted by Suddenly Newton View Post


    Did the common use of "App Store" to refer to an online software download service predate Apple's use of the term?





    No. Apple invented the concept, which is now generic and widespread. Similar to the world's first "gas station," we now call every gasoline seller a "gas station." One corporation probably coined the term, but they don't own it.
  • Reply 117 of 151
    Quote:
    Originally Posted by chronster View Post


    No, it's designed around a SCREENED system, with different screens for different functions.



    The whole point of picking "Windows" as a name was that it was like opening a window to a new experience with each screen. As I said before, even today many people still refer to each window as a screen (mainly the old guys I work with who have been in IT for many many years.)



    So "Windows" is a creative term used to differentiate a specific operating system.



    If apple called their store the "iOS app store" and Microsoft called it the same, then obviously this would all make sense



    So, you're saying that copyrighting "Windows" is OK but copyrighting "Office" is NOT OK?
  • Reply 118 of 151
    djsherlydjsherly Posts: 1,031member
    Quote:
    Originally Posted by cgc0202 View Post


    Since you used your law background, it would make more sense if you cite specific provisions in the copyright, patent and trademark law relevant to each point. And, as important, examples of what was accepted as well as those rejected based to clarify the law.



    Do you want peer review as well? This is an internet forum, for god sakes.
  • Reply 119 of 151
    wijgwijg Posts: 99member
    http://www.dollarstore.com/index.html



    Case closed. Apple wins.



    Just for grins, though:



    There is a Victor's Secret out there which successfully fought off trademark challenges from Victoria's Secret. (Relevant to the Windows settlement with Lindows.)



    Also, there are many commonplace trademarks that exist that have "become generic" by virtue of their success:

    Formica

    Cellophane

    Xerox

    Kleenex

    Styrofoam

    ...



    It's interesting that there are cases in which manufactured names (usually considered the most protected) have have challenged on the basis of genericness.



    Clearly, "App Store" does not suffer from any such confusion. Everyone knows it refers to Apple. And yet it's claimed that this cannot be so because the words themselves are generic.



    Well, the proof is in the pudding. That "App Store" is not mistaken for Windows programs, or Android programs, or a place to buy job applications, or various appendices, is indicative of its uniqueness.



    When manufactured names are challenged, what can be said except that the challengers lost?
  • Reply 120 of 151
    anantksundaramanantksundaram Posts: 20,250member
    Quote:
    Originally Posted by emacs72 View Post


    success of other companies is a good thing regardless of one's classification.



    Prices being driven to marginal costs is never a good thing for shareholders.



    Just sayin'...
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