updated 06:40 pm EDT, Tue March 29, 2011
Microsoft wields Amazon store vs Apple trademark
Microsoft in a response to the USPTO (below) on Tuesday cited the just launched Amazon Appstore as evidence that Apple couldn't maintain "app store" as a trademark. It used the launch last Tuesday as evidence that there was a "competitive need" from companies to use the concept of an app store generically. About 17 stores were already using it where Apple had claimed that use beyond its own shop was virtually non-existent, Microsoft said, and those that hadn't had primarily been intimidated into avoiding the name.
"Apple's enforcement testimony misses the point," Microsoft went on. "Even if some third parties have stopped using 'app store' to avoid being sued by Apple, the fact that they were using the term in the first place shows that 'app store' is a common name for online stores offering apps and that allowing Apple to appropriate this name for its exclusive use will prejudice competitors."
It also noted that 11 of 13 stores previously spotted were still using the generic wording. Using another name didn't automatically mean "app store" was specific to Apple any more than Payless Shoe Source was a sign "shoe store" belonged to someone else, according to Microsoft. The absence of a dictionary entry was also pointless as two-word items never find their ways into dictionaries and the dictionaries themselves were never a complete, fully updated reflection of language.
The response further reiterated what Microsoft saw as Apple's self-contradiction. Not only did its own expert find generic uses of the word "app store," but Apple's own executives, including CEO Steve Jobs, have referred to competitors as having "app stores" in the generic sense. Citing its own evidence, it pointed to Greenliant Systems losing control of "nandrive" after it was proven people were regularly using the word generically to small flash drives.
Apple had tried to refer to examples of stores that had filed for trademarks on normally generic names, such as The Computer Store and The Money Store. Microsoft rejected both examples; Apple falsely claimed that The Computer Store had been granted its trademark, and The Money Store's trademark had been applied explicitly to financial help and not the retail store subject at the heart of the trademark fight.
The use of Amazon, as well as other stores such as the DirecTV App Store, could be significant blows to Apple's case for defending its trademark. Earlier arguments had been based more on semantics. Microsoft's new complaint, however, centers more on direct evidence and on refuting Apple's. Apple was one of the first to formally use the term to refer to an app store in mid-2008 but wasn't the first to have such a shop, nor did it get the trademark until well after the concept had entered the popular language through the iPhone's success. [via GeekWire]