Judge Denies Apple Injunction Against Amazon's Appstore

[JAT]

Genesis 2.

Lists no names. Have you read it? Oh, and I assume you meant 3.

go read the first page. You have some people here who boarder on among the Apple fanboy group saying Apples cases was crap.

I also suggest you go look at the other threads that have gone over these that explain why App Store is generic and as such can not be trademark.

So, their idiocy makes yours ok? 2 wrongs are ok? K.

I have yet to see a real argument that doesn't stem from some form of, "the word application was in use in year xxxx". Hence my post.

 

[cmaier]

I should clarify: a registered trademark that actually denotes any level of legal exclusivity. Any Schmo can put TM after something. It's the registered status that gets you legal protection, and importantly, the legal rights that allow you to sue others and request injunctions.

Until then, this is a tinkling contest and nothing more.

That's not true.

http://topics.law.cornell.edu/wex/Trademark

Excerpt below:

The Lanham Act provides federal protection for distinctive marks that are used in commerce. See 15 U.S.C. §§ 1051 et seq. Federal protection for unregistered marks is generally available under 15 U.S.C. § 1125(a), which creates a civil cause of action for claims of false designation of origin and false advertising. Although registration is not a prerequisite to federal trademark protection, registered marks enjoy significant advantages over unregistered marks including: registration serves as nationwide constructive notice of ownership and use of the mark under 15 U.S.C. § 1072; and a registered mark may achieve incontestable status after five years of continuous use under 15 U.S.C. § 1065, which enhances the owner's rights by eliminating a number of defenses to claims of infringement.

Unregistered trademarks may also be protected at the state level by statute and/or common law. Under state common law, trademarks are protected as part of the law of unfair competition. State statutes vary, but most states have either adopted a version of the Model Trademark Bill (MTB), which provides for trademark registration, or the Uniform Deceptive Trade Practices Act (UDTPA), which does not.

Registration gets you national scope without having to have used it in commerce nationally, and gets you other benefits. But you can sue under both federal theories and certainly under state unfair competition laws without federal registration. Trademarks are not like patents - they are not limited to federal law.

 

[slffl]

This is great news! Opens the door wide open for my new bookstore I'm opening in Seattle called 'Amazon'.

 

[Rodimus Prime]

Lists no names. Have you read it? Oh, and I assume you meant 3.

So, their idiocy makes yours ok? 2 wrongs are ok? K.

I have yet to see a real argument that doesn't stem from some form of, "the word application was in use in year xxxx". Hence my post.

so go read the other threads on this.

App store is a store that sells apps hence it is generic.

App store is considered descriptive and as such can not be trand mark.


Here are some link for you as well
http://en.wikipedia.org/wiki/Genericized_trademark

 

[cmaier]

so go read the other threads on this.

App store is a store that sells apps hence it is generic.

App store is considered descriptive and as such can not be trand mark.


Here are some link for you as well
http://en.wikipedia.org/wiki/Genericized_trademark

You are confusing "generic" and "descriptive." It's clearly "descriptive" in that it describes what it is.

It may or may not be "generic" - it's generic if the genus is called "app stores" (that is, "App Store" is an "app store," and "Android Market" is an "app store," etc.)

There are different outcomes depending on whether a mark is generic or descriptive.

 

[Rodimus Prime]

You are confusing "generic" and "descriptive." It's clearly "descriptive" in that it describes what it is.

It may or may not be "generic" - it's generic if the genus is called "app stores" (that is, "App Store" is an "app store," and "Android Market" is an "app store," etc.)

There are different outcomes depending on whether a mark is generic or descriptive.

opps but if I understand it correctly descriptive terms can not be trademark as well.

As for generic use of it. They have Apple's CEO using the term that way to describe competitors App stores

 

[cmaier]

opps but if I understand it correctly descriptive terms can not be trademark as well.

Descriptive terms can be trademarked if they have achieved "secondary meaning."

As for generic use of it. They have Apple's CEO using the term that way to describe competitors App stores

Yep. But the test is not whether "some guy" used it that way. The test is whether that's the way it's used by consumers. Of course, the fact that Steve did that doesn't help their case.

 

[AppleScruff1]

And Apple records took Apple to court and LOST.

You should do a bit more reading on the subject and see how many times Apple Computer lost and/or paid a settlement to Apple Records vs. the one ruling they had in their favor.

 

[Rodimus Prime]

Descriptive terms can be trademarked if they have achieved "secondary meaning."



Yep. But the test is not whether "some guy" used it that way. The test is whether that's the way it's used by consumers. Of course, the fact that Steve did that doesn't help their case.

I though one of the big things on protecting one trademark is not for the company itself (aka Apple) does not use the term generically or descriptively n their own public events.
I would love to see how Apple lawyers respond to the judge asking them how the term App Store is not generic when their own CEO used the term that way. That was a huge mistake on SJ part.
I do think consumers as far as I can tell use the term descriptively to describe any app store.

 

[CalBoy]

That's not true.

http://topics.law.cornell.edu/wex/Trademark

Excerpt below:



Registration gets you national scope without having to have used it in commerce nationally, and gets you other benefits. But you can sue under both federal theories and certainly under state unfair competition laws without federal registration. Trademarks are not like patents - they are not limited to federal law.

In the case of Apple, Amazon, and other tech companies, the national status of the mark is really all that matters. The first bolded section about false advertising and false origin is inapplicable to Apple's claim.

Apple also isn't going to be able to maintain 50 separate state actions for what is essentially the same claim (unfair competition). If Amazon (or any other corporation being sued by Apple over this) had even half decent lawyers, they would remove the case to federal court through diversity, and then use joinder to consolidate all of the cases. At that point Erie and its progeny would be out the window, and federal law would control.

I can appreciate what you're saying in that trademarks aren't completely toothless without registered status, but it just isn't relevant for Apple and app store. For Apple, the lack of registered status is the Achilles Heel.

 

[maclaptop]

I wish apple would use this money for development instead of this stupid lawsuit.

I agree 100%. Plus all the time Apple wasted is sheer madness. Yet we must remember the fragile ego & serious paranoia of Steve Jobs. Those two elements drive a lot of his decisions.

That's why fear raised it's ugly head when Steve panicked and said " You're holding it wrong" he realized he was caught red handed after his engineers warned him the antenna was crap. Stubborn beyond reason and unable to be honest , Jobs told them to certify it as perfect, no problem. Then he conned the fanbois and they got sucked into the same lies.

 

[cmaier]

In the case of Apple, Amazon, and other tech companies, the national status of the mark is really all that matters. The first bolded section about false advertising and false origin is inapplicable to Apple's claim.

Apple also isn't going to be able to maintain 50 separate state actions for what is essentially the same claim (unfair competition). If Amazon (or any other corporation being sued by Apple over this) had even half decent lawyers, they would remove the case to federal court through diversity, and then use joinder to consolidate all of the cases. At that point Erie and its progeny would be out the window, and federal law would control.

I can appreciate what you're saying in that trademarks aren't completely toothless without registered status, but it just isn't relevant for Apple and app store. For Apple, the lack of registered status is the Achilles Heel.

Wrong. Apple gets national protection regardless of registration because their use in commerce was national. Further, the cited sections on "false advertising" are applicable. And the case IS in federal court but there are state law claims in the suit. When a case goes to federal court, you don't lose state law claims. The federal court applies state law in diversity cases.

 

[Discoverer]

I wonder how much Amazon and Microsoft spent to buy that judge.

 

[ChazUK]

I wonder how much Amazon and Microsoft spent to buy that judge.

I'm guessing nothing.

 

[Oletros]

I wonder how much Amazon and Microsoft spent to buy that judge.

Ah, the udge has denied the injuction because he is a criminal.

 

[Oletros]

When I was a PC user, I never really heard of the word application (Program instead), until I switch to my first mac.

Well, perhaps you didn't heard, but did you see on folder called "Application data", Application description for the .exe suffix files, etc?

 

[Seanozz]

Wirelessly posted (Mozilla/5.0 (iPhone; U; CPU iPhone OS 4_3_3 like Mac OS X; en-us) AppleWebKit/533.17.9 (KHTML, like Gecko) Mobile/8J2)

Silly Apple, they should know better. Its like if a gas company sued another gas company cause they where using the word "gas" to sell their oil.

It's more like if two companies called their product gasoline and one trademarked the term gas and then the other company started copying the 1st.

Everyone called them programs, then applications and then apple called them apps. Now everyone wants a piece.

 

[RobertMartens]

I'm with Amazon with this one.

I'm getting tired of Apple sticking their nose where it doesn't belong, just like they did with the ebook market.

Oh, please, you promised you weren't gonna bring that up anymore. How long can a man hold a grudge anyway?

 

[RobertMartens]

A significant number of those commenting in this thread (and in similar ones) seem very much to be focused on whether or not end users will become "confused" if both Apple and Amazon use the term "App Store" (or some variant thereof). While it may not appear to the users of this site that confusion is probable or, perhaps, even possible, simply reading through the comments in the various threads addressing the topic will point out how mistaken that belief is. A few preliminary points and then a little highlighting of what should be obvious (but, apparently, is not):

• This site is largely, though not exclusively, a site for those who are relatively tech adept.
• A large percentage of Mac users could not even tell you what the "Finder" is.

While it may seem ridiculous to the users of this site that some people cannot even locate the Finder (and much less know what it is), the average computer user is not particularly au fait with the machine that he may very well use every day. Most computer users know the software they have to know for work and for personal use and not a whole lot else. This is not entirely unreasonable. It would be a very sure thing to wager that the average user of this site could not deconstruct and rebuild the engine in his vehicle. Why? Because the average user of this site neither needs to do this in his work or his personal life nor does he have a hobby that involves such a task.

Now, to the point at hand: How many comments in this thread alone have stated that it is 'good Apple lost this one' or some similar inanity? Even attributing some of these to sloth (as not everyone reads the article before drooling something into his keyboard), it would appear that a certain portion of the users of this site do not possess the knowledge (or reasoning ability) to recognize the difference between the denial of a preliminary injunction and the loss of a trial.

Taking into account that the article clearly states that the judge also set a trial date of October 2012, it is most trivial to reason (even if one is not possessed of the knowledge before reading the article) that Apple did not lose the case at hand. Yet some individuals have failed even this remedial test. Is it, then, such a stretch to believe that some users will, indeed, be confused by the use of the term "App Store" by both Apple and Amazon?

You are too smart for this thread. Having demolished every possible argument what are we supposed to talk about now?

Thanks for nothing

 

[rmwebs]

Sorry folks, but Apple is 100% in the right on this one, and if the justice system works, then they will ultimately win this trial.

NOBODY in the ENTIRE TECH WORLD ever used the term "app" or "app store" until Apple coined these phrase, and Apple trademarked it as well! All these other wannabe companies, like Amazon, are all trying to hitch a free ride on Apple's coattails, when Apple did all the hard work of blazing this trail for them and trademarking this term for themselves!

If you don't believe that Apple can trademark "App Store" and keep it for their own use (and they sure as hell should be able to do both), then how in the world can Microsoft get away with trademarking the COMPLETELY GENERIC TERM "Windows"? The term "windows" was used constantly by every human, every single day, in both technology and out of technology.

It would be INSANE for Microsoft to be able to have "Windows" to themselves, if Apple can't have the totally-justified "App Store" all to themselves.

it would be like someone trying to come out with their own "iTunes Store". It's totally ridiculous, and Apple will ultimately win this trial.

You think this is the same as Microsoft having 'Windows'.

Definition of Window:

an opening in the wall of a building, the side of a vehicle, etc., for the admission of air or light, or both, commonly fitted with a frame in which are set movable sashes containing panes of glass.

Definition of App:

an application; application program.

Definition of Store:

an establishment where merchandise is sold, usually on a retail basis.

I suggest reading every single 'Amazon vs Apple' thread on here. Till then, don't post complete junk with little to no insight into what you're actually saying.

 

[the8thark]

Come on who did not see this one coming. If anything if Apple keeps pushing it I feel Amazon should have every right to demand all their legal cost for this mess refunded to them.

This is yet another blow to add to the list that hurts Apple's case.
Next up the Trademark for App store will be denied like it should be.

Apple made it big with the App Store and others are trying to ride Apple's success bandwagon. If there is justice in the world, Amazon will be told to rename their online program store (or whatever you want to call it) and Apple will be told "you win but for acting like nasty a**holes you won't win any damages".

If Amazon win - that is proof the US justice system has failed. Appstore is not a generic term. How often do you use the word in general language and not mean "an online place to purchase applications for your computer"? You don't. It's different to windows where is can be a software or a hole in a wall with glass or a metaphor (like a window into the soul) etc etc.

if I was the judge I'd have granted Apple's injuction but no payout by either side.

You know the sad part?
If Apple fight this they will probably lose cause an incompetent law system can't do the right thing. (Sadly I can't see Apple win this as they should.
If Apple choose not to fight this it's deemed as failing to actively defend a trademark (or trademark still in the application process). So they lose.

So it seems no matter what Apple do they will probably lose this. Now the decision is do Apple keep fighting this and hope for a miracle and get the win they deserve or cut their loses and try to mop up the PR disaster they are creating by fighting this ugly war?

 

[Nightarchaon]

I personally think the courts should charge apple several billion dollars for "Wasting courts time" with this.

the term "app store" i first heard when compaq (later HP) released the Ipaq windows CE devices, (third party application stores sprung up on the interwebs and even back then we shortened the term to "app" store)

App has always been a truncated version of application everywhere i have worked since the good old dos days, heck, we even used to call the cupboard we kept the DOS 6.22 and windows 3.11 floppies in our "App Store", so if anything i should be suing apple for trademark infringment!!

Companies that just try to stamp out competition or bully others like apple does should be fined a meaningfull amount, so in apples case, about 40 billion USD.

Let the courts deal with criminals, not this bull poop.

 

[Oletros]

How often do you use the word in general language and not mean "an online place to purchase applications for your computer"?

So, can I trademark Book Store because you only use it for, well, a place that sells books?

 

[Lennholm]

Here's why the comparison to Windows is silly:

You don't say "Windows is a window", you say "Windows is an operating system"
You DO say "App Store is an app store".

If Apple would own the rights to the phrase "app store", how would other companies describe their app stores?
"Our platform for purchasing software"? They would most likely keep describing it as "our app store", now that will cause confusion if Apple wins and make the phrase non-generic. Apple should lose this.

 

[KnightWRX]

Is there no documentation of the usage of this word.

Did Apple first use it? Is Amazon admitting that Apple coined the phase but don't own it? Who used it first?

I don't mean that Apple should control the term but has it been established who first used the term.

Come on, we only need to look back 5 years to get this information. How hard could it be.

Try 13 years. In 1998, Sage Networks filed for the trademark APPSTORE.

Also, being first does not mean the term is trademarkable. It just means you were first to use it.