updated 02:12 am EDT, Thu November 1, 2012
Skeptical judge questions Apple's claim of ownership
At a hearing on Wednesday in Oakland Federal Court, Apple and Amazon clashed over the use of the term "App Store." The hearing concerned a false advertising claim asserted by Apple against Amazon in the ongoing battle involving the disputed term. Amazon believes the term is generic and can't be trademarked, and Apple claims that since it set the "benchmark" for online application purchasing, that it controls the term and its use online and in print advertising.
"A pioneering brand—the first successful brand in a new market—plays a unique role in educating consumers about the product category as a whole while simultaneously building consumer affiliation between the product and the pioneer," said Apple in its court filing.
"Everyone who uses a smartphone knows the difference between the Apple iOS system and the Android system," responded Judge Phyllis Hamilton. "Where's the confusion? There's some suggestion [by Apple] that if Amazon is using the 'Appstore' term someone might think they have as many apps as Apple does. Well, why? And how, in fact, does that contribute to any deception on the part of Amazon?"
Hamilton seemed skeptical about Apple's pre-hearing trademark surveys being able to show consumer confusion. Apple's surveys showed that when presented with the term "app store," an association was formed with Apple products. However, when presented with the survey, the judge said "I don't believe any consumers were directly asked whether they were deceived." Apple believes that the question was beyond the scope of this survey, and wasn't required.
Both Amazon and supporters like Microsoft have objected to Apple's App Store trademark on the grounds that the concept was too generic. Most have noted that they were avoiding "app store" partly to avoid legal trouble, not out of special regard for the name in question. Apple has always said that App Store was to some degree a play on its own name and only really entered into heavy use following the iPhone's original release in July 2008.
Apple's case is believed to be weak. The Cupertino company has been stalled by HTC, Sony, and Nokia in its attempt to trademark the term "app store." Amazon and others have noted that "app" was a word of the year in 2010, and that even former Apple CEO Steve Jobs used the term "app store" generically to refer to options from competitors.