Judge Not At All Impressed By Apple's Lawsuit Against Amazon Over 'App Store' Name
from the you're-going-to-lose dept
Even as Apple continues to threaten anyone else for using the phrase "app store" to describe an app store (sorry, Steve, it's generic), the judge in the lawsuit between Apple and Amazon has made it clear that she's not buying Apple's claim here. She refused to issue an injunction blocking Amazon and said that Apple will "probably" lose the case itself -- in large part because Apple failed to demonstrate any form of consumer confusion. The judge is still going to review some filings, but the chances of Apple winning here are remote, at best.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
The app abbreviation has been used for decades and was generic before Apple started using it in the phrase "app store." Jobs didn't coin the term and no one realistically thinks it's short for apple.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
And uh oh.. double whammy: if you use a droid phone to access the app store Lucas and Jobs will be hunting you down by sending Sith Lords armed with iPad and/or iPhone lightsabers!
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
So if an 'android' looks like a human - what do you call a robot that looks like some of the other Star Wars aliens?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
No confusion here
"App Store" is no different than "Gas Station."
[ link to this | view in chronology ]
apple store
[ link to this | view in chronology ]
Re: apple store
[ link to this | view in chronology ]
Re: Re: apple store
[ link to this | view in chronology ]
what else can I say...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
popularized vs invented
I've worked in the industry for oh, before many of you were born probably, and I can state confidently that Jobs popularized the term "app" well beyond any idea of chance.
No, Jobs and Apple did not "invent" the term, but neither did Gates invent the word "Windows" and he defends that quite vigorously. History is replete with examples of words that have been in heavy use for decades before being appropriated as a trademark for a company, and I would argue, as I have just done, that this word wasn't even in heavy use.
Anyone who claims that the word was generic and well used to mean "application" is either ignorant of the actual usage, or being willfully deceptive.
I don't really care one way or the other whether Amazon, or the Android marketers use the term. I just think that Apple is right to fight for this, because they made it popular.
Just like every single smartphone company out there is working double-time to create something derivative of the iPhone instead of actually innovating in the market, they are also preying on the use of the word "app" to assist their marketing efforts (or lack thereof).
Mark my words: If Apple had decided to call their little applications "Tweaks"... They'd be fighting every mobile device company out there for use of the phrase "TweakStore" right now.
The only real innovator in the market right now is Apple. Everyone else is just picking their nose and waiting for the next Apple product/idea to copy.
For those who choose to avoid Steve's products: Enjoy your second-rate knock off.
Sheesh.
[ link to this | view in chronology ]
Re: popularized vs invented
Rabidly retardulous fanboi.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: popularized vs invented
Neener.
[ link to this | view in chronology ]
Re: Re: popularized vs invented
A little bit of googling:
http://hints.macworld.com/article.php?story=20001205184203324
"How to compile a UNIX app for X UNIX"
"Dec 05, '00 06:42:03PM"
"[Editor's note: Please see the comments for some useful suggestions]
"I have been having some nagging difficulties compiling c code into X ... Can any one explain the full path to doing this this successfully ?
"I mean this must be one of the most appealing aspects of OS X, the ability to run any shell based unix app.....if you could get it to actually work.... :-( "
"unix apps on osx"
"Authored by: rjzak on Dec 08, '00 06:23:52PM"
"does does this mean i can run/compile GAIM, KDE, XFree86, or some other popular unix app under OSX?"
[the macworld example probably came up high on the search results because Apple/macs is associated with both app and unix]
Then there was this from 2004:
http://blogs.technet.com/b/jdzions/archive/2004/01/17/59825.aspx
"Turning a Unix App into a Web Service using SFU and .NET - Part 1"
Going back to InfoWorld Dec 4, 1995, pg48:
"McAfee brings antivirus app to NT and Win95"
Going back to InfoWorld Sep 14, 1992, pg51:
"Financial analyst sees a bleak future for the PC industry"
"Well, aren't Windows apps doing well?"
"Yes, but it's hard to tell whose, which is my major point -- Windows apps all look alike"
"Whose brand is reassuringly on both the Windows operating system and on its Windows apps? The only Windows apps doing well are Microsoft's"
[ link to this | view in chronology ]
Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: popularized vs invented
The rest of us just agree he's crazy.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: popularized vs invented
The problem with being under 30 (for some)is that they are in the unenviable position of being born *after* Apple began. Since a person in this position has low self esteem, they think that the only good things are things that came along *after* they were born. They suffer from an irrational need to validate their own experiences relative to their birth date. Hence the fascination with anything non-pre-them.
It's really quite common.
[ link to this | view in chronology ]
Re: Re: Re: popularized vs invented
"Better to remain silent and be thought a fool than to speak out and remove all doubt."
[ link to this | view in chronology ]
Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
I made the word popular mommy and now THEY are using it!
If it doesn't stop soon I will NEVER be prom queen!
*Steve crys*
*Mommy pats steves head*
Don't worry baby. Mommy will make sure those bad girls stop using "Your" word.
[ link to this | view in chronology ]
Re: popularized vs invented
Me thinks you don't have enough rings on your innards young sapling. Early 90's to present day in the computer industry and this was one of the first terms I learned!
[ link to this | view in chronology ]
Re: popularized vs invented
Hmm. I hadn't thought of it that way. I think you're right.
[ link to this | view in chronology ]
Re: Re: popularized vs invented
No doubt this is true.
I wonder if I should trademark the term TweakStore right now!!
[ link to this | view in chronology ]
Re: Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: Re: Re: Re: popularized vs invented
This is what the market is doing with every other aspect of Apple's design ethic, I think this would be the same story.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: popularized vs invented
You should at least get a rabid clown in there, somewhere.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: popularized vs invented
And then there would be no argument because tweak isn't short for anything else, like app is short for application. So maybe they would be all over apples ass, but the reason people are all over app store is because its a natural progression. Even pencil-neck generalized it himself. People would be all over tweak store to ride the fame.
They are all over app store because that's descriptive, not inovative.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: popularized vs invented
YOU DESEEECRETE THE HOLY NAME OF JOBS BY ALLOWING YOUR FILLTHY MOUTH HOLE TO TAINT OUR GLOURIOUUS WORD!!!?!?!?!!!!
Isn't Apple the same company that made the commercial 1984? I wonder how much they paid George Orwell. I'm guessing it was nothing since he was long dead but he popularized the year 1984. See how stupid it sounds when you apply tard logic to these kinds of ideas?
[ link to this | view in chronology ]
Re: Re: popularized vs invented
You really are dense there snowflake...
[ link to this | view in chronology ]
Re: Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
Guess he was ignorant of the actual usage as he wasn't aware that Turtleneck-boy was going to "popularize" the term "app" in the 00's.
[ link to this | view in chronology ]
1987 says m-w
*****
"Killer Apps"
1995 Miles Conrad Memorial Lecture
NFAIS Annual Conference
February 28, 1995
Morris Goldstein, Chief Executive Officer, Information Access Company
ABSTRACT
For decades, the information industry has relied on traditional designs for information delivery. Typically these designs are dependent upon techniques and skills that have become limiting factors in their usage. With the dawning of an information enabled society, it is incumbent on our industry to develop comprehensive solutions to information problems and move beyond our traditional markets. We are an industry that is well positioned to create "killer applications."
...
This KILLER APP was a killer app because it was able to solve information inquiries without knowledge of anything but the question! InfoTrac was so sophisticated that it made usage simple. In 1983, most A&I applications were delivered to libraries in print form.
*****
From InfoWorld Dec 28, 1992 - Jan 4, 1993, pg38:
"I can't tell you what killer apps are going to ignite the object-oriented AI multimedia wildfire, but I bet it involves networking -- probably ATM."
Finally, it appears "app" goes back at least to 1987.
From Merriam-Webster's collegiate dictionary 11th edition copyright 2003
By Merriam-Webster, Inc:
"killer app n (1988): a computer application of such great value or popularity that it assures the success of the technology with which it is associated"
On page 17a it explains that the date in parenthesis refers to the oldest date of usage in the English language as far as [m-w] could determine.
So "killer app" goes back to 1988, and this almost implies "app", as a natural abbreviation of "application", goes back further. Specifically, to 1987:
"app n (1987): APPLICATION"
[ link to this | view in chronology ]
Re: popularized vs invented
Remember when the RAZR was the king of the hill? Yeah. Most have forgotten that.
[ link to this | view in chronology ]
Re: Re: popularized vs invented
And, then again, who's to say that the thing that replaces the iPhone won't be invented by Apple anyway.
You can't argue with the fact that Apple is eating everyone's lunch. C'mon... I can understand you having a preference, but your preference is what? A poor copy of an Apple design? That is what every mobile device out there essentially is.
Apple will continue to eat everyone's lunch if everyone continues to get in line behind them and follow their lead.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
"A killer application (commonly shortened to killer app), in the jargon of marketing teams, has been used to refer to any computer program that is so necessary or desirable that it proves the core value of some larger technology, such as computer hardware, gaming console, software, or an operating system. A killer app can substantially increase sales of the platform on which it runs."
References:
Scannell, Ed (February 20, 1989). "OS/2: Waiting for the Killer Applications". InfoWorld (Menlo Park, CA: InfoWorld Publications) 11 (8): pp 41–45. ISSN 0199-6649. Early use of the term "Killer Application".
Please lie more.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
Overall I smell lawyers making money out of hot air here.
[ link to this | view in chronology ]
Re: Re: popularized vs invented
For the last time, Apple and Windows trademarks are perfectly legitimate. Name one other Apple brand hardware or software company. How about Windows?
Just because they're generic words, does not mean they're generic names. They tell you PRECISELY which company your products are created by WITHIN THE MARKET THAT THEY'RE SPECIFIED TO.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
Wow, you've never had to work an apps dev team?
I still remember my first day on a new help desk (back in the 90's) when I was introduced to "the apps guys" over the other side of the floor.
"Anyone who claims that the word was generic and well used to mean "application" is either ignorant of the actual usage, or being willfully deceptive."
Where's this ignorance and willful deception you speak of I wonder?
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
LOL.
A company known for taking other people's ideas and making them white and shiny? Innovator?
LOL
Enjoy paying a 30% profit margin so you can have a white, shiny toy to look cool at Starbucks with.
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
Apple may finally be innovative (and pardon me, I remember the days of the piddly Mac Classic versus decent PCs) but they aren't /that/ innovative - a lot of 'features' of their products were around long before they packaged them up nicely (I'll give them that).
I remember when iPhones first came out, picking up my smartphone (HTC Tytn) and thinking that I already had everything except the pinchy screen - and I had 3G and all the connectivity that the iFail didn't - and it didn't cost me a penny either (free with contract).
iPods are just glorified mp3 players - hardly special there, and since they are locked down to their store, less useful than a generic mp3 player.
Just because a bunch of Apple fanbois and tech newbies never heard the word 'app' before (too busy at the Kool-Aid cooler?) doesn't mean that anyone who was already paying attention to technology and associated the word 'app' with 'application' has a valueless opinion. You can't trademark a word for a common use when it is in common use. If Windows weren't already a trademark, no-one could come along and trademark it now.
[ link to this | view in chronology ]
Re: popularized vs invented
JE .AppleAppStore
[ link to this | view in chronology ]
Re: popularized vs invented
[ link to this | view in chronology ]
Re: popularized vs invented
So, although 'app' WAS associated, sort of, with Apple:
"You keep using that word. I don't think it means what you think it means. - I. Montoya
[ link to this | view in chronology ]
Re: Re: popularized vs invented
A LOT of people shortened "application" to "apps". I know the circle of people I hang with has been doing it for over 20 years.
[ link to this | view in chronology ]
Re: Re: popularized vs invented
Apps were used under OS400, VMS, CMS, and MVS Mini Computing way back in early 80's and before with mainframes.
Though the term 'app' might not be known generically as referring to 'applications' by the public at large nowadays and instead might be construed as meaning "phone apps by apple" the trademark class that Apple are wanting to use the trademark as, has fully and for a long prior history used the abbreviation in a generic sense meaning any programme for a specific application for what it is designed for. And that community is where the trademark falls down on the grounds that it does NOT distinguish the trademark from other commonly known uses in the class, and is likely to deceive or cause confusion within its class.
[ link to this | view in chronology ]
Google search results for "eye ointment app"
[ link to this | view in chronology ]
So fill in the blank I downloaded a ________ today for my phone. From a spot that allows me to download all sorts of different_________ for my phone. Would Angry Birds be considered an application or a game or a non-Apple copyrighted term of_______________???
If he is so worried about the confusion why not change it to the iapp store? Full of iapps that only work on an iphone or ipad???
[ link to this | view in chronology ]
Re:
... oh wait!
[ link to this | view in chronology ]
Re: Re:
naaaah :)
[ link to this | view in chronology ]
This Flies In The Face Of The Whole “Trademark DIlution” Concept
[ link to this | view in chronology ]
The trademark being sought is "App Store", a combination mark.
The application has issued and in now available for opposition by those who believe the trademark "App Store" is not a valid trademark under US law. Apparently, one or more companies are or have file notices of opposition.
It is also useful to keep in mind that the lawsuit relatively new, and that the proceeding at this stage involves solely a request by Apple for a preliminary injunction. In order to secure such an injunction, one of the requirements is that the party seeking the injunction must demonstrate to the satisfaction of the court that it will likely succeed on the merits of its lawsuit. If this is not met, then such an injunction is denied and the case proceeds along just like any other lawsuit.
Importantly, this does not mean that Apple has a loser of a case, as some seem inclined here and on other sites to suggest. What it does mean is that Apple will now have to proceed with discovery, as will Amazon, and at its conclusion either a summary judgement (if requested by motion) will be awarded to one of the parties or the case will proceed to trial.
In other words, this article describes a preliminary skirmish, and nothing more. Just because Apple may not win the skirmish by no means means the war is lost.
Ultimately, trademark cases come down to a single issue, and that is "likelihood of confusion". It is not at all hard to imagine scenarios where companies like Amazon may use the term "App Store" in such a way that likelihood of confusion may tilt in favor of Apple.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Additionally, if the Almighty Jobs Himself has referred to other stores as 'app stores' - even as a Freudian Slip - it rather invalidates the uniqueness argument.
[ link to this | view in chronology ]
Re: Re:
What I do find a bit curious about Apple's registration is that it specifically disclaims the word "store" when used in conjunction with anything other than "App Store", but does not do the same for the word "App". Why this is the case is known only to Apple.
[ link to this | view in chronology ]
How About “Appy Appy Joy Joy Store”?
[ link to this | view in chronology ]
...the chances of Apple winning here are remote, at best.
There, fixed that for ya!
[ link to this | view in chronology ]
Because app is and was the common abbreviation for application. They can't pick a term because of its existing definition, and then later pretend they coined it themselves. If they had called it the 'tweak store', they could certainly trademark it; but, they would also have had to give up the advantage of capitalizing on their customers' pre-existing knowledge of what an app was.
And the idea that it's short for 'Apple', of course, is ridiculous enough to be ignored.
[ link to this | view in chronology ]