Well as far as I know, Apple hasn't argued that they have acquired secondary meaning yet for their trademark. The danger in doing so is to admit that their mark is generic and descriptive, and then try to convince a judge that it shouldn't matter. Currently they already have the trademark so it would be a bad move to argue secondary meaning at this point in time. I imagine someone will eventually try to invalidate Apple's trademark (which wasn't at issue in this court case) at which point they'll go the route of claiming acquired secondary meaning. Is it the quickest process? No, and I desperately hope for patent and trademark reform. The Leahy-Smith AIA is a good start though and hopefully it doesn't take another 50 years to see more progress.
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Judge Dismisses Apple Trademark Claims Against Amazon's Appstore
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Well as far as I know, Apple hasn't argued that they have acquired secondary meaning yet for their trademark. The danger in doing so is to admit that their mark is generic and descriptive, and then try to convince a judge that it shouldn't matter. Currently they already have the trademark so it would be a bad move to argue secondary meaning at this point in time. I imagine someone will eventually try to invalidate Apple's trademark (which wasn't at issue in this court case) at which point they'll go the route of claiming acquired secondary meaning. Is it the quickest process? No, and I desperately hope for patent and trademark reform. The Leahy-Smith AIA is a good start though and hopefully it doesn't take another 50 years to see more progress.
And what secondary meaning would there be? Any way you construe the term, you'll always come down to the fact that it's simply Apple's store you get apps from.
It's like Software Store suing Software Ect. and Software City because they have a trademark on the word "software".
I don't think your analogy holds water. One is a store, the other a product. It's not comparable.
I generally don't comment on the legal posts unless I see people commenting incorrectly about how the law works, and in a lapse of judgment, think that someone may remotely care to learn something (that I consider) interesting. Almost always, they like to stick to their own beliefs. LOL, no idea why I even try anymore.
It's not a good point. The problem all of you (yes, ALL OF YOU) are having is with the word "generic". The problem with App Store is not that it is generic. A lot of trademarks use generic words, it's that App Store is DESCRIPTIVE.
It's a store that sells Apps. App Store. Microsoft Windows is not a Window, nor a plurarity of windows, it's an operating system suite. Office is not an actual Office with desks and chairs and a coffee machine, it's a bundle of applications that are used for productivity. Again : The App Store is a store where Apps are sold.
Generic vs Descriptive. It helps to understand and differentiate the issue.
Now please, with this in mind, continue the mindless bickering.
Windows frequently calls then applications and programmes. Hence why data from applications is stored in "programme files" and "App Data". In fact Windows any .exe file as an application.
Applications on mobile platforms have frequently been called apps all the way back in the 80's and since. Apple didn't invent the word. I'm struggling to understand the mental gymnastics in your post. First you take one point in my earlier post to make a point and ignore all other points I made that contradict yours, and then you go off on about drivel about Apple leads and all others follow. That's a discussion for another thread and its still just your opinion.
Secondary meaning would be if Apple had moved fast enough and made sure that everyone associated "App Store" with their store for applications. "Hey, I bought this on the App Store" being a common phrase that everyone understood meant Apple's app store. Apple have failed to show evidence of such. People on Android call the Play Store/Market their App Store, same for Windows Phone people.
Hence the mark being descriptive and having failed to achieve secondary meaning could result in it not being granted (was it even ever granted or is it still in the opposition phase ?).
Secondary meaning isn't that it means anything other than App Store... a Store from which you buy Apps / Applications / Software, whatever you want to call them. Secondary meaning is just the reference that the public conscious hears the phrase "App Store" and thinks Apple. Once people begin to associate a generic, descriptive phrase with a particular vendor, then that vendor can say they gave the phrase secondary meaning. I know, there are a million angry macrumors members that will say they associate the term app with something else. But the test isn't whether people associate "App" with another vender, but the phrase "App Store." This is why I kept linking to Google Trends. No one searched for the "App Store" term before Apple introduced it in 2008. If you watch the "View Over Time" option, you can see the "App Store" term outbreak like a virus once it was introduced. This is why I would argue that Apple clearly deserves the trademark. Yes, there are other app stores, but overall, the general public associates App Store with Apple (note: general public likely doesn't include the tech-savvy macrumors members).
Apple would require time to establish secondary meaning. It's not just something that pops up as soon as a vendor uses a descriptive phrase. Has Apple really achieved secondary meaning ?
Frankly, I don't think so. In 2008, it was called the iTunes App Store for one, not just plain App Store and over time, people never really just associated it with Apple once the term was out there. The thing is, nothing was called a plain descriptive App Store before Apple used it.
Maybe the first 10 times we had this exact thread going, but it's gotten lame repeating and digging up all the same old links, explaining the difference between generic words being used as trademarks vs a descriptive phrase, explaining abbreviations used in Computer Science for decades, etc...
Exactly. It's a common shortened term, really. In following what you stated below, it's a generic shortened term. Like you don't say "hey, I went to Bill's Super Mega Mart to get some milk". You say "I went to the grocery store to get some milk". It's much the same way with the various app stores. If someone has a Fire HD, you're not going to say "Okay, go the Amazon Appstore, look for blah, then download it". You're going to say "hit up the app store then look for blah".
To me, Apple trying to trademark app store is exactly like someone trying to trademark "grocery store". It's a shorthand generic description Apple is trying to turn into a brand name.
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Yeah, after about 6 pages they all get pretty old. But starting out, it's fairly entertaining.
...though no one ever learns anything.
Well I would say its ripe for the secondary meaning claim, if they were ever to go for it. They are required to defend their mark, which is what they tried to do against Amazon here, and lost. It's definitely possible that the Android store and WP Store have caused people to disassociate it with Apple, but the catch is that public confusion (not that they are actually confused, but rather just associating the phrase with another brand) was what Apple was trying to avoid to begin with by suing Amazon as soon as they started using something very similar to their mark. Overall, I tend to agree with you that it's a lost cause as most people will continue to dilute their mark over time.
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LOL, fun indeed. It's like me thinking I can take a pile of wood and make a bird house, then continuing to hit my thumb with a hammer while trying to put it together.
Lol time to poke the fire. You do know there are handfuls of app stores created long before Google and Apple. Seeing that app is the abbreviation for application I do find it fitting to be used as a generic term as any application thrown into a group and displayed for sale would be an application store. GetJar actually pioneered the app store genre. This goes back to the Xerox mouse days. Nothing with sharing ideas and making them better but if you make them better it's really no fair to call it your own after that. Patents truly are killing innovation. And Apple to me seems to be the least innovative company right now.
I made this point at the time:
Nobody called them "apps" until Apple called them "apps." Before that, "apps" were buffalo wings and ranch pizza shooters.
That Microsoft would make the case that "app" was a generic term was laughable, because Microsoft has always called them PROGRAMS. NOT APPLICATIONS, or APPS.
Mac OS has an "Applications" folder, Microsoft has a "Programs" folder, and never called them anything but until Apple was successful with the term "App Store."
After all, MS, Palm and others had portals and stores for their platforms BEFORE the App Store, but never named it that because, well, they never thought to because, despite this judge's insistence, App was NOT ubiquitous. Except at TGI Fridays or Chotchkys.
Amazon never created an OS and never wrote apps or programs before, so there's little evidence that they gave any thought to it other than "let's name it the same as Apple, so that Kindle customers equate the two." There's really no other conclusion to draw.
Now, does it matter? Does Apple have the right to claim "App Store" as it's own just because they came up with the name? I guess not according to this judge. But an appeals judge or panel might "think different".
But it's no different than the purposeful iConfusion that competitors and latchers-on have created over the last 15 years since the iMac, pre-pending i to everything from toasters to pancake pans, all to piggy-back on the successful marketing that Apple does so well. Despite it being obvious those others were glomming onto Apple's success and attempting to create market confusion, Apple was never able to defend that in court, either.
Our system is too busy protecting obvious concepts as "patents" and yet allows trademark confusion, cyber squatting, and many other forms of blatant and obvious attempts to confuse the consumer and part them from their money and time in the process.
Nobody called them "apps" until Apple called them "apps." Before that, "apps" were buffalo wings and ranch pizza shooters.
That Microsoft would make the case that "app" was a generic term was laughable, because Microsoft has always called them PROGRAMS. NOT APPLICATIONS, or APPS.
Mac OS has an "Applications" folder, Microsoft has a "Programs" folder, and never called them anything but until Apple was successful with the term "App Store."
After all, MS, Palm and others had portals and stores for their platforms BEFORE the App Store, but never named it that because, well, they never thought to because, despite this judge's insistence, App was NOT ubiquitous. Except at TGI Fridays or Chotchkys.
Amazon never created an OS and never wrote apps or programs before, so there's little evidence that they gave any thought to it other than "let's name it the same as Apple, so that Kindle customers equate the two." There's really no other conclusion to draw.
Now, does it matter? Does Apple have the right to claim "App Store" as it's own just because they came up with the name? I guess not according to this judge. But an appeals judge or panel might "think different".
But it's no different than the purposeful iConfusion that competitors and latchers-on have created over the last 15 years since the iMac, pre-pending i to everything from toasters to pancake pans, all to piggy-back on the successful marketing that Apple does so well. Despite it being obvious those others were glomming onto Apple's success and attempting to create market confusion, Apple was never able to defend that in court, either.
Our system is too busy protecting obvious concepts as "patents" and yet allows trademark confusion, cyber squatting, and many other forms of blatant and obvious attempts to confuse the consumer and part them from their money and time in the process.
Look, someone who didn't read the thread.
Heck, he didn't even read this last page. And here we go again having to correct someone that is both wrong and was last time (which we probably corrected, but since he's probably drive-bys on these, he's not reading the corrections).
You're wrong. MS generally refers to them as programs in Windows, but there's plenty of references buried inside the OS referecing applications and apps. Have been since Win 3.1 according to a link Oletros posted above.
You look at the properties of an .exe file, and it'll tell you it's an application. You've had the APPDATA roaming folder since at least Vista. It goes on and on.
To put it simply, the words applications and apps aren't Apple specific.
Nope, nope, and nope. There were several App Stores around before Apple. As I've mentioned serveral times, Handango was one and Palm also had the "Palm App Catalog".
Look, someone who didn't read the thread.
Exactly.
I'm happy to have learned some useless trivia from this thread... that B.F. Goodrich used Gideon Sundback's fasteners on rubber boots and galoshes, and called them "zippers." Never would have guessed that one.
O.K. fella - I don't know how old you are...but
back in the mid 90s I learned to disable JavaScript on my browser when surfing for "the hottest Warez and Appz"
AFAIR the differentiation was that the "Warez" category was all about games while the "Appz" category was about productivity software. But I could be wrong.
Nevertheless the term Application and its abbreviation App have been around for decades. Now do yourself a favor, try to grasp that concept and stop this myth building.
Anyone around here doubting or even denying the use of the word "Appz" on the dark side of the internet for decades? - yeah - I thought so.
The problem here is that people have short memories. I honestly can't remember when I started using the word "app", but if you're like me and you have a mountain of old archived emails, your Mac has this wonderful ability to search through them and uncover some history. Searching for "app " is unproductive as Apple's search won't distinguish between "app " and "Apple", but searching for "apps" in Mail gave me these quotes:
PS. Just upgraded to OS X. Aside from the limited availability of native apps, I am enjoying it a lot.
Source: me!
Date: 25 October 2001
However, although the current crop of second-generation players can transfer data at 1.4 MBps (fast enough for DVD video and movie applications), for data apps, a verification cycle cuts that speed by almost one-half.
Source: PC World magazine
Date: 14 December 2001
- quit all running apps and open the System Preferences panel
Source: DiamondSoft Tech Support
Date: 8 June 2002
Xserve, Apple's new 1U rack-optimised server, is drawing rave reviews. "A Unix server for the masses," David Coursey of ZDNet AnchorDesk writes. "This is a tremendous offering for small businesses, especially those that currently
run Unix-based or Windows-based vertical apps."
Source: Apple eNews
Date: 11 June 2002
"Since I have been involved in the emulation community, I have seen hundreds of switchers," he said. "I will also keep making skins and apps that emulate Mac OS for PC users because I know it creates switchers."
Source: http://www.wired.com/gadgets/mac/news/2004/04/63256?currentPage=2
Date: 30 April 2004
On 31/05/2005, at 6:23 PM, free_apps@filemaker.com wrote:
Dear Customer
Thank you for registering your copy of FileMaker Pro 7. As part of our time-limited offer you are now eligible to download over €200’s worth of free Applications: Tasks, Meetings and Work Requests.
Source: FileMaker International
Date 31 May 2005
Source: me!
Date: 25 October 2001
However, although the current crop of second-generation players can transfer data at 1.4 MBps (fast enough for DVD video and movie applications), for data apps, a verification cycle cuts that speed by almost one-half.
Source: PC World magazine
Date: 14 December 2001
- quit all running apps and open the System Preferences panel
Source: DiamondSoft Tech Support
Date: 8 June 2002
Xserve, Apple's new 1U rack-optimised server, is drawing rave reviews. "A Unix server for the masses," David Coursey of ZDNet AnchorDesk writes. "This is a tremendous offering for small businesses, especially those that currently
run Unix-based or Windows-based vertical apps."
Source: Apple eNews
Date: 11 June 2002
"Since I have been involved in the emulation community, I have seen hundreds of switchers," he said. "I will also keep making skins and apps that emulate Mac OS for PC users because I know it creates switchers."
Source: http://www.wired.com/gadgets/mac/news/2004/04/63256?currentPage=2
Date: 30 April 2004
On 31/05/2005, at 6:23 PM, free_apps@filemaker.com wrote:
Dear Customer
Thank you for registering your copy of FileMaker Pro 7. As part of our time-limited offer you are now eligible to download over €200’s worth of free Applications: Tasks, Meetings and Work Requests.
Source: FileMaker International
Date 31 May 2005
So, to summarise, in addition to the aforementioned "killer apps", we have "native apps", "data apps", "running apps", "vertical apps", and "free apps"—and this just from a quick search through my old emails. (This search only goes back to 2001, because that's when I first started using Mail on OS X. Before that it was some long forgotten email client on earlier versions of Mac OS.)
A little bit of history that I found interesting at least, even if no one else does!
Oh, but wait, now that this point has been clarified, it's not about "apps" but "AppStore". See what they did there? That "gotcha" debating.
In all seriousness, are people really going on about who coined a name first as if their life depends on it? Are we making millions from this issue? Are we gaining ANYTHING from this issue? No? So why fight it? Oh, ego. Ok, I get it, you're the king of the internet.
I think this applies to a few of you (not you, Renz)
Attachments
LOL...really? Confusion amongst consumers? Does Apple really think that i'll be trying to install android apps on my iOS stuff?
In all seriousness, are people really going on about who coined a name first as if their life depends on it? Are we making millions from this issue? Are we gaining ANYTHING from this issue? No? So why fight it? Oh, ego. Ok, I get it, you're the king of the internet.
It's cold outside, man. I don't wanna go out in it, and I don't have anything else to do.
Oh. Well. Then...carry on.