This time I'd wish Amazon wins the battle, as I really dislike the App Store concept. What Apple should do is to have a certification process which checks compliance with the Mac user interface guidelines and some quality standards. But software distribution should be a task for the developer, not for Apple.
I want Apple to certify the quality of my software and my compliance with their guidelines, but I don't want Apple to control if my application is, for example, politically correct. I agree that if Apple distributes software through their website, they must control the content, otherwise customers would blame Apple for the apps content, as it already happened. But, for this very same reason, they shouldn't distribute software, because it's not Apple who must control the content, but the developer.
It's fine if Apple wishes to have a web with an application catalog, but not in the way they're doing it... it looks like the App Store will be the only way for legally distributing Mac software in the future. Too bad.
So, for me... good luck Amazon... although I don't believe they'll win...
Interesting example. But are you sure that they can't trademark "frosted flakes" because it is obvious or is it because they just think it until it after others were doing it? If it is the second case then this example actually bolsters Apple's case and justifies it. (If it is indeed the first case then Apple is in trouble with this case!)
Kellogs may have been able to trade mark "Fro Flakes" ???? This follows the same path as "App Store"
Yeah, that was my question as well. I can market tissues under the "Kleenex" name because that name has become generic?
A term can lose its genericness over time. Some prominent examples include 'aspirin' and 'shredded wheat.'
But, no, you cannot use 'kleenex' to sell tissues, because Johnson & Johnson has taken steps to preserve their Kleenex mark. Other prominent examples of such preservation have been mentioned, such as Xerox, Jello, and Lycra.
So when people called making a copy (any copy) a Xerox, their trade mark could be taken away because of common usage?
Yes. I forget the exact wording, but if a large enough portion of the population uses a term in a generic sense and that can be proven in court, then a trademark can be taken away.
I've never heard that. It doesn't make any sense because the reason a trade mark becomes popular is because companies spend millions to build their brands.
In what case did a company spend millions to build a brand because of the popularity of that brand the government then rule that brand a generic term?
Quote:
Originally Posted by austinjw
Yes. I forget the exact wording, but if a large enough portion of the population uses a term in a generic sense and that can be proven in court, then a trademark can be taken away.
Someone asked me the other week how many apps were in the WP7 App Store. Given that the WP7 App store isn't called app store, this indicates to me that the general public don't even associate App Store only with Apple.
Irruspective which side wins they should both give up the name as in each case there not an App Store but rather a department in a bigger store.
Yeah, that was my question as well. I can market tissues under the "Kleenex" name because that name has become generic?
I think Kleenex is a poor example since Kimberly-Clark invented the word*. App Store is a formation from two existing words, one in an abbreviated form.
* The original name for Kleenex was Cheesecloth UGG
OK, fine, forget Kleenex-- try "The Container Store" which is a business entity with many retail outlets who's name if forged from commonly used nouns already in use to describe that very thing, a store that sells various sorts of containers. Anyone want to argue that a national retailer, say Walmart, could open up a specialty business in containers and call it "The Container Store" without getting sued?
That's what I was thinking. I wouldn't argue that the single words "app" or "container" should be protected, but the combination of words "App Store" and "Container Store," while seemingly just adding one word, do have brand recognition as a phrase. If you say "I'm going to the Container Store to get some file cabinets" many people would assume you mean the Container Store, not just a store that sells containers.
That's why we're not hearing about a lawsuit involving the BlackBerry App World. "App World" is obviously different from "App Store," so the word "app" itself is not a problem.
The whole point is to avoid misleading consumers. Just look at UPS's trademark of the color brown. Does that mean I can't paint my house brown? Of course not ... but it does mean I can't start a national shipping company that uses brown trucks, uniforms and logo and try to grab a few unknowing customers away from UPS.
I've never heard that. It doesn't make any sense because the reason a trade mark becomes popular is because companies spend millions to build their brands.
In what case did a company spend millions to build a brand because of the popularity of that brand the government then rule that brand a generic term?
It's true.
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Also, this case is more about the word "app." Apple cannot claim the term "app store" because they are not allowed to consider "store" to be part of their trademark. Store is descriptive. If Apple can prove that the word "app" is theirs they will win this case. I don't think this will happen though. Steve Jobs has already called other app stores just that: app stores. The head of the company is using it generically on top of the fact that I've never seen the word "app" defined in a way that corresponds with Apple. I'm excited to see the arguments coming out of this, but I can't see Apple winning this one.
Found this . It's a list of words that were once trademarked and lost that trademark for being generic. My favorite one is Heroin haha
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Also, this case is more about the word "app." Apple cannot claim the term "app store" because they are not allowed to consider "store" to be part of their trademark. Store is descriptive. If Apple can prove that the word "app" is theirs they will win this case. I don't think this will happen though. Steve Jobs has already called other app stores just that: app stores. The head of the company is using it generically on top of the fact that I've never seen the word "app" defined in a way that corresponds with Apple. I'm excited to see the arguments coming out of this, but I can't see Apple winning this one.
Found this . It's a list of words that were once trademarked and lost that trademark for being generic. My favorite one is Heroin haha
Actually, your list offers evidence Apple indeed can use App Store as a trademark. Your list contains VideoTape as a trademark that lost it's legal protection. But the fact that it was a trademark proves App Store is also trademarkable. In that case, Tape is alos descriptive, and Video wasn't owned by anyone. Yet the combination VideoTape was trademarked, until it becames generic.
"A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service to such an extent that the public thinks the trademark is the generic name of the product or service."
Very few trade marks will so dominate a market that it becomes the primary generic name of that product or service. Also the trade mark was taken away after some time of that trade mark dominating that product or service.
I agree that App Store is pretty generic. At the same time the only reason others want to use it is because Apple has made it into a valuable brand.
Quote:
Originally Posted by LogicNReason
It's true.
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Never mind the fact that the term "app" was never widely used before Apple started using it, and the fact that nobody had a centralized "app store" before Apple did. Other than that, it is generic.
Here is a snapshot of the website 'portableapps.com' from Christmas of 2005:
Note that it defines 'app' as "a computer program like a web browser or word processor", and then further notes:
"A portable app is a computer program that you can carry around with you on a portable device and use on any Windows computer. When your USB thumbdrive, portable hard drive, iPod or other portable device is plugged in, you have access to your software and personal data just as you would on your own PC. And when you unplug, none of your personal data is left behind."
Not sure when Apple's app store opened, but I know that I personally have (as others have) been using the term 'app' for many MANY years before even 2005 to refer to applications.
Now I'm no lawyer, but it seems to me that if you can't own 'drug store', 'hardware store', 'grocery store', 'software store', or 'application store', it doesn't make sense that Apple, or anyone else, could own 'app store'.
Not entirely true tho. Kleenex was a completely random name that became popular after the brand became ubiquitous. A better example would be frosted flakes. Kellogs cannot trademark the name frosted flakes because they describe exactly what the product is, a frosted flake, similar to app store. The name app store describes exactly what it is, a store that sells apps. It'd be like trying to trademark the name bookstore before books became wildly popular.
Kellog's Frosted Flakes is what was trademarked, I see the same thing happening with Apples app store.
Wrong. Kellogg North America Company owns the trademark on "Frosted Flakes" (source).
EDIT: Looking at the trademark info more closely, it appears that the mark is categorized under "beverageware and dishware"... which seems very strange :-/.
The Steve Jobs quote using "app store" as a generic term is irrelevant because Apple is trademarking "App Store", not "app store". There is a difference.
Also, the first link you posted shows that a trademark for APPSTORE was issued to Salesforce.com, which Apple subsequently won in a settlement agreement. That supports Apple since it shows the term is trademark worthy.
I'm also absolutely convinced that Amazon will file for a trademark on Appstore if they prevail against Apple. ... In my opinion, Apple added the value to that term and should be the one to benefit.
I think they're arguing the wrong term. Amazon should just argue that it doesn't matter whether "App Store" is generic or not, but "Amazon Appstore" is definitely not generic, because Amazon is a well-known brand they own and people would not associate Amazon with Apple.
Then Apple would be allowed to create an operating system named "Apple Windows".
The point of a trademark is to protect your trade value. The word "Appstore" tries to capture some of Apple's trade (or brand) value, which makes it a violation of Apple's trademark.
In other words, the issue is: Will consumers assign one brand's value to another, unrelated company's brand due to that company's marketing literature/imagery? If so, then that would be a violation of trademark.
Comments
I want Apple to certify the quality of my software and my compliance with their guidelines, but I don't want Apple to control if my application is, for example, politically correct. I agree that if Apple distributes software through their website, they must control the content, otherwise customers would blame Apple for the apps content, as it already happened. But, for this very same reason, they shouldn't distribute software, because it's not Apple who must control the content, but the developer.
It's fine if Apple wishes to have a web with an application catalog, but not in the way they're doing it... it looks like the App Store will be the only way for legally distributing Mac software in the future. Too bad.
So, for me... good luck Amazon... although I don't believe they'll win...
Interesting example. But are you sure that they can't trademark "frosted flakes" because it is obvious or is it because they just think it until it after others were doing it? If it is the second case then this example actually bolsters Apple's case and justifies it. (If it is indeed the first case then Apple is in trouble with this case!)
Kellogs may have been able to trade mark "Fro Flakes" ???? This follows the same path as "App Store"
Not true. Trademarks can be taken away if a term becomes generic over time.
So, how would Apple loose money by someone else saying they have an "App Store", when none of the apps on that store will work with the iOS?
Kellogs may have been able to trade mark "Fro Flakes" ???? This follows the same path as "App Store"
I took this in Galway, Ireland. Relevant.
So when people called making a copy (any copy) a Xerox, their trade mark could be taken away because of common usage?
Yeah, that was my question as well. I can market tissues under the "Kleenex" name because that name has become generic?
Yeah, that was my question as well. I can market tissues under the "Kleenex" name because that name has become generic?
A term can lose its genericness over time. Some prominent examples include 'aspirin' and 'shredded wheat.'
But, no, you cannot use 'kleenex' to sell tissues, because Johnson & Johnson has taken steps to preserve their Kleenex mark. Other prominent examples of such preservation have been mentioned, such as Xerox, Jello, and Lycra.
So when people called making a copy (any copy) a Xerox, their trade mark could be taken away because of common usage?
Yes. I forget the exact wording, but if a large enough portion of the population uses a term in a generic sense and that can be proven in court, then a trademark can be taken away.
In what case did a company spend millions to build a brand because of the popularity of that brand the government then rule that brand a generic term?
Yes. I forget the exact wording, but if a large enough portion of the population uses a term in a generic sense and that can be proven in court, then a trademark can be taken away.
Irruspective which side wins they should both give up the name as in each case there not an App Store but rather a department in a bigger store.
Yeah, that was my question as well. I can market tissues under the "Kleenex" name because that name has become generic?
I think Kleenex is a poor example since Kimberly-Clark invented the word*. App Store is a formation from two existing words, one in an abbreviated form.
* The original name for Kleenex was Cheesecloth UGG
OK, fine, forget Kleenex-- try "The Container Store" which is a business entity with many retail outlets who's name if forged from commonly used nouns already in use to describe that very thing, a store that sells various sorts of containers. Anyone want to argue that a national retailer, say Walmart, could open up a specialty business in containers and call it "The Container Store" without getting sued?
That's what I was thinking. I wouldn't argue that the single words "app" or "container" should be protected, but the combination of words "App Store" and "Container Store," while seemingly just adding one word, do have brand recognition as a phrase. If you say "I'm going to the Container Store to get some file cabinets" many people would assume you mean the Container Store, not just a store that sells containers.
That's why we're not hearing about a lawsuit involving the BlackBerry App World. "App World" is obviously different from "App Store," so the word "app" itself is not a problem.
The whole point is to avoid misleading consumers. Just look at UPS's trademark of the color brown. Does that mean I can't paint my house brown? Of course not ... but it does mean I can't start a national shipping company that uses brown trucks, uniforms and logo and try to grab a few unknowing customers away from UPS.
I've never heard that. It doesn't make any sense because the reason a trade mark becomes popular is because companies spend millions to build their brands.
In what case did a company spend millions to build a brand because of the popularity of that brand the government then rule that brand a generic term?
It's true.
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Also, this case is more about the word "app." Apple cannot claim the term "app store" because they are not allowed to consider "store" to be part of their trademark. Store is descriptive. If Apple can prove that the word "app" is theirs they will win this case. I don't think this will happen though. Steve Jobs has already called other app stores just that: app stores. The head of the company is using it generically on top of the fact that I've never seen the word "app" defined in a way that corresponds with Apple. I'm excited to see the arguments coming out of this, but I can't see Apple winning this one.
Found this
It's true.
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Also, this case is more about the word "app." Apple cannot claim the term "app store" because they are not allowed to consider "store" to be part of their trademark. Store is descriptive. If Apple can prove that the word "app" is theirs they will win this case. I don't think this will happen though. Steve Jobs has already called other app stores just that: app stores. The head of the company is using it generically on top of the fact that I've never seen the word "app" defined in a way that corresponds with Apple. I'm excited to see the arguments coming out of this, but I can't see Apple winning this one.
Found this
Actually, your list offers evidence Apple indeed can use App Store as a trademark. Your list contains VideoTape as a trademark that lost it's legal protection. But the fact that it was a trademark proves App Store is also trademarkable. In that case, Tape is alos descriptive, and Video wasn't owned by anyone. Yet the combination VideoTape was trademarked, until it becames generic.
"A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service to such an extent that the public thinks the trademark is the generic name of the product or service."
Very few trade marks will so dominate a market that it becomes the primary generic name of that product or service. Also the trade mark was taken away after some time of that trade mark dominating that product or service.
I agree that App Store is pretty generic. At the same time the only reason others want to use it is because Apple has made it into a valuable brand.
It's true.
Escalator, yo-yo, aspirin, and trampoline were all trademarked at one point. A court had their trademark removed because the name was so used that it became "generic."
The only way to avoid this (because you do want to advertise) is to do what Jello does and say "Jello brand gelatin." This can prolong the time you keep the trademark, however, it's easy to see that "jello" will more than likely become a generic word EVENTUALLY.
Never mind the fact that the term "app" was never widely used before Apple started using it, and the fact that nobody had a centralized "app store" before Apple did. Other than that, it is generic.
Here is a snapshot of the website 'portableapps.com' from Christmas of 2005:
http://replay.web.archive.org/200512...tableapps.com/
Note that it defines 'app' as "a computer program like a web browser or word processor", and then further notes:
"A portable app is a computer program that you can carry around with you on a portable device and use on any Windows computer. When your USB thumbdrive, portable hard drive, iPod or other portable device is plugged in, you have access to your software and personal data just as you would on your own PC. And when you unplug, none of your personal data is left behind."
Not sure when Apple's app store opened, but I know that I personally have (as others have) been using the term 'app' for many MANY years before even 2005 to refer to applications.
Now I'm no lawyer, but it seems to me that if you can't own 'drug store', 'hardware store', 'grocery store', 'software store', or 'application store', it doesn't make sense that Apple, or anyone else, could own 'app store'.
Just sayin'
Not entirely true tho. Kleenex was a completely random name that became popular after the brand became ubiquitous. A better example would be frosted flakes. Kellogs cannot trademark the name frosted flakes because they describe exactly what the product is, a frosted flake, similar to app store. The name app store describes exactly what it is, a store that sells apps. It'd be like trying to trademark the name bookstore before books became wildly popular.
Kellog's Frosted Flakes is what was trademarked, I see the same thing happening with Apples app store.
Wrong. Kellogg North America Company owns the trademark on "Frosted Flakes" (source).
EDIT: Looking at the trademark info more closely, it appears that the mark is categorized under "beverageware and dishware"... which seems very strange :-/.
Already pointed out that "killer app" existed for an application/program that encouraged hardware sales.
Google Apps also existed before the app store.
You all have fun. This has been debated ad nauseum.
Edit: Not posted here, but on Arstechnica, in the response Amazon quoted Steve Jobs in his Oct earnings call that even he uses the term generically:
Another link that appeared in the thread, interesting if true:
http://trademarkem.com/descriptivene...-vs-salesforce
http://trademarkem.com/descriptivene...apple-vs-amaon
The Steve Jobs quote using "app store" as a generic term is irrelevant because Apple is trademarking "App Store", not "app store". There is a difference.
Also, the first link you posted shows that a trademark for APPSTORE was issued to Salesforce.com, which Apple subsequently won in a settlement agreement. That supports Apple since it shows the term is trademark worthy.
I'm also absolutely convinced that Amazon will file for a trademark on Appstore if they prevail against Apple. ... In my opinion, Apple added the value to that term and should be the one to benefit.
I think they're arguing the wrong term. Amazon should just argue that it doesn't matter whether "App Store" is generic or not, but "Amazon Appstore" is definitely not generic, because Amazon is a well-known brand they own and people would not associate Amazon with Apple.
Then Apple would be allowed to create an operating system named "Apple Windows".
The point of a trademark is to protect your trade value. The word "Appstore" tries to capture some of Apple's trade (or brand) value, which makes it a violation of Apple's trademark.
In other words, the issue is: Will consumers assign one brand's value to another, unrelated company's brand due to that company's marketing literature/imagery? If so, then that would be a violation of trademark.
http://i.imgur.com/Q5pc4.jpg
I took this in Galway, Ireland. Relevant.
Actually, that's not relevant since you're in Ireland. The "Frosted Flakes" trademark is for the US.