Judge says Apple has 'stumbling block' in trademark case against Amazon
A U.S. District Judge said on Wednesday that she will "probably" deny Apple's trademark infringement request to block Amazon's Appstore for Android because the iPhone maker has yet to produce "real evidence" that customers have confused it with the App Store.
At a hearing in an Oakland federal court on Wednesday, U.S. District Judge Phyllis Hamilton remarked that Apple has a "stumbling block" in proving that customers would confuse Apple's App Store with Amazon's Appstore for Android, Reuters reports.
That obstacle is Apple's inability to produce ?real evidence of actual confusion,? the judge said. ?I?m troubled by the showing that you?ve made so far, but that?s where you?re likely not to prevail at this early juncture.? Hamilton has yet to make a final ruling in the case, and plans to reread some of the supporting papers, according to an individual present at the hearing.
In March, Apple sued the online retailer over its use of the App Store trademark. The complaint accused Amazon of "improperly using" the mark for its mobile software developer program and "unlawfully" using it to attract developers to its platform. Apple stated in its filing that it had contacted Amazon three times asking them to cease using the trademark, but had not received a "substantive response."
In spite of the suit, Amazon proceeded with opening its Appstore for Android just days later. The digital download service includes a "Test Drive" feature that allows users to try out an Android application before buying it.
Amazon eventually responded with a filing, claiming the "app store" term is generic and would not cause confusion. Apple has countered the argument with subsequent filings, including one that alleges the Amazon Appstore is "inferior and will tarnish Apple's mark." According to Apple, Amazon's storefront poses a security threat because it offers applications for "rooted" Android devices, which are more vulnerable to security breaches.
Microsoft has even cited Amazon's store in its own objections to the mark. The Windows giant has been the most vocal opponent to the "App Store" trademark, alleging that the term is generic. Apple responded by asserting that if the App Store trademark is generic, so is Microsoft's Windows mark.
At a hearing in an Oakland federal court on Wednesday, U.S. District Judge Phyllis Hamilton remarked that Apple has a "stumbling block" in proving that customers would confuse Apple's App Store with Amazon's Appstore for Android, Reuters reports.
That obstacle is Apple's inability to produce ?real evidence of actual confusion,? the judge said. ?I?m troubled by the showing that you?ve made so far, but that?s where you?re likely not to prevail at this early juncture.? Hamilton has yet to make a final ruling in the case, and plans to reread some of the supporting papers, according to an individual present at the hearing.
In March, Apple sued the online retailer over its use of the App Store trademark. The complaint accused Amazon of "improperly using" the mark for its mobile software developer program and "unlawfully" using it to attract developers to its platform. Apple stated in its filing that it had contacted Amazon three times asking them to cease using the trademark, but had not received a "substantive response."
In spite of the suit, Amazon proceeded with opening its Appstore for Android just days later. The digital download service includes a "Test Drive" feature that allows users to try out an Android application before buying it.
Amazon eventually responded with a filing, claiming the "app store" term is generic and would not cause confusion. Apple has countered the argument with subsequent filings, including one that alleges the Amazon Appstore is "inferior and will tarnish Apple's mark." According to Apple, Amazon's storefront poses a security threat because it offers applications for "rooted" Android devices, which are more vulnerable to security breaches.
Microsoft has even cited Amazon's store in its own objections to the mark. The Windows giant has been the most vocal opponent to the "App Store" trademark, alleging that the term is generic. Apple responded by asserting that if the App Store trademark is generic, so is Microsoft's Windows mark.
Comments
It's all so childish. Just think up an original name for cripes sake. Is it that hard?
The fact that they don't want to think up an original name is pretty much proof of Apple's claim IMO. If they weren't trafficking on the goodwill already established by Apple with the name, then any other name would do just as well. But any other name *wouldn't* do as well, because it doesn't have the same impact as copying Apple's already well-known moniker.
Microsoft has even cited Amazon's store in its own objections to the mark. The Windows giant has been the most vocal opponent to the "App Store" trademark, alleging that the term is generic. Apple responded by asserting that if the App Store trademark is generic, so is Microsoft's Windows mark.
IKYABWAI? Classic!
I've always thought of a "stumbling block" as a very specific issue that makes a specific task difficult. The article, however fails to mention anything specific. Did the Judge mention what the stumbling block was or would a more general "up hill climb" been more appropriate?
The judge stated she was troubled by Apple's inability to produce evidence that anyone is confused by it; so unless they can produce that evidence she's pretty much told them it's over.
Amazon should realise that there are a lot of people who won't buy anything from Amazon every again if they win this suit.
And you should realize that your statement is hyperbole and that this will not impact Amazon's online retail sales at all, excepting maybe you.
The judge stated she was troubled by Apple's inability to produce evidence that anyone is confused by it; so unless they can produce that evidence she's pretty much told them it's over.
I think that's the problem with having such a generic trademark.
You couldn't release a Toyota or open a McDonald's store without people being confused with the real product.
However when the terms "app", "store" and the combination "app store" were all in use before the iOS App Store, it's harder to believe that people will think Amazon is selling apps for iOS.
Apple should have had the foresight to call it the iStore or something they could really own.
I do think Amazon are only using "Appstore" because Apple made it popular. I'm not sure how Apple prove that though.
The fact that they don't want to think up an original name is pretty much proof of Apple's claim IMO.
Imagine Apple produced a softdrink called Apple-Joos, lets imagine it's a very sour apple flavour and that it became enormously popular. Then imagine Amazon decided to get in on the act and created a rival brand - Apple-Zon, with a very similar flavour.
'Foul' cry Apple, 'you've stolen our TM'. 'It's all fair' cry Amazon, 'in this context Apple is a generic because it's the flavour.'. This hypothetical is actually pretty much what happened to Coca-Cola.
Anyway, because 'Apple' is a generic when applied to flavour it's entirely reasonable for our hypothetical beverage copy-cat to want to use it, because they want their product to be associated with the flavour, not the competitor. Even if they secretly do want it to be associated with the competitor, it doesn't matter if it's a generic.
This is Amazon's argument in a (kola)-nutshell. That there is no harm because there will be no confusion, and that the reason that their name happens to be so similar to Apple's name is because the term has become a generic and not because they're hoping for a bit of confusion.
Honestly I think they're lying through their teeth, but it's far from a slam dunk for Apple.
In the meantime I will close my account with Amazon and will advise my family and friends to do the same.
The judge stated she was troubled by Apple's inability to produce evidence that anyone is confused by it; so unless they can produce that evidence she's pretty much told them it's over.
Amazon should realise that there are a lot of people who won't buy anything from Amazon every again if they win this suit.
It's all so childish. Just think up an original name for cripes sake. Is it that hard?
The fact that they don't want to think up an original name is pretty much proof of Apple's claim IMO. If they weren't trafficking on the goodwill already established by Apple with the name, then any other name would do just as well. But any other name *wouldn't* do as well, because it doesn't have the same impact as copying Apple's already well-known moniker.
I don't think a substantial number of people even know that this lawsuit exists, let alone are they picking sides,
The VAST majority of people (read: non tech site message board people like us) don't follow this stuff remotely close enough to care. They just want to be able to go and get Angry Birds and Doodle Jump for their phones, regardless if it's from Apple's App Store or Amazon's.
Personally, if I had an Android phone, I would much rather prefer to go through Amazon's store than Google's, since I know Amazon is curating their store.
Personally, if I had an Android phone, I would much rather prefer to go through Amazon's store than Google's, since I know Amazon is curating their store.
Given that they're not even adequately curating their book store, it's hard to believe they'll do a much better job with programs.
http://www.salon.com/books/amazon/in...06/21/spamazon
However when the terms "app", "store" and the combination "app store" were all in use before the iOS App Store, it's harder to believe that people will think Amazon is selling apps for iOS.
I haven't actually seen a mass market case of something called an 'App Store' before Apple did, so the phrase probably wasn't a generic when they first coined it - any more than 'Rollerblade' is. It was just a good descriptive brand.
Unfortunately for Apple the term genericized at lightning speed, and even Steve Jobs kinda used it as a generic when he spoke of Lion users getting 'a mac app store'. That indefinite article could end up being very expensive.
Unfortunately for Apple the term genericized at lightning speed,...
The term 'app' wasn't coined by Apple. It was in use before Apple. Apple did make it popular with the popularity of iOS devices, but that doens't make it trademark-able by Apple.
Back in the day......computers ran programs.
Today......devices run apps.
It's generic.
If all fail, the attempt to get evidence or the case then I suppose anybody out there with similar position in the future should watch their back lest Apple decided to hijack theirs. Mind, if anything, with the current rate only Apple could make generic term distinctive.
BTW, this would have implication to the Mac App Store as well and Amazon (perhaps some other site as well) also sell this (software download).
Amazon should realise that there are a lot of people who won't buy anything from Amazon every again if they win this suit.
It's all so childish. Just think up an original name for cripes sake. Is it that hard?
You'll take some flak for the slightly exaggerated way in which you're making your point, but fundamentally, you're spot on (so screw them): Amazon signals great weakness and a basic lack of creativity by naming their store as they did.
It's truly childish on their part.
The term 'app' wasn't coined by Apple. It was in use before Apple. Apple did make it popular with the popularity of iOS devices, but that doens't make it trademark-able by Apple.
Back in the day......computers ran programs.
Today......devices run apps.
It's generic.
You misunderstand, App was generic, there's no dispute, but App Store wasn't. Combining two generic words doesn't produce a generic word - cheesecake and factory are both generic, but 'Cheesecake Factory' isn't. In order for App Store to have been a generic there would have to be large numbers of references were people used the phrase in a generic fashion. Those references may exist now, but they didn't exist back in 2008.
BTW, this would have implication to the Mac App Store as well and Amazon (perhaps some other site as well) also sell this (software download).
Interestingly Amazon don't call their Mac software store Amazon Mac Appstore, they call it Amazon Mac Download Store. Presumably because in that instance they couldn't claim that there was no confusion.
Amazon should realise that there are a lot of people who won't buy anything from Amazon every again if they win this suit.
Exaggerate much? What percentage of Amazon customers even know this suit is going on? I bet it's less than 5%