It’s twofer Tuesday! (Well, okay, it’s Tuesday in the mid-Atlantic and eastward, at least). Microsoft’s lawsuit against Barnes & Noble for patent infringement in Android has been rather neatly bookended by another IP infringement lawsuit emerging on the same day in which Microsoft’s closest competitor sues Barnes & Noble’s closest competitor.
That’s right, Apple is suing Amazon because Amazon has the temerity to use the name “App Store” for its new Android application service. Jeremy Hill at our sister blog Gamertell seems to find Apple’s decision justifiable:
When we hear the term App Store, Apple is usually the first company that comes to mind. The App Store moniker can easily become one that can become muddied if every company is allowed to use it. In Apple’s case, the company claims to have successfully applied for a trademark for App Store through the U.S. Patent and Trademark Office.
On the other hand, the name “App Store” seems to embody the entire concept of a “merely descriptive mark”, as expounded by BitLaw:
Descriptive marks (or more properly, "merely descriptive marks") are devices which merely describe the services or goods on which the mark is used. If a device is merely descriptive, it is not a mark at all, since it does not serve to identify the source of the goods or services. No trademark rights are granted to merely descriptive marks.
What is an “App Store”? Could it be a store where apps are sold? You might as well trademark “Grocery Store” or “Used Car Dealership”. I’m all but certain that people have described the Android Market as “an app store” ever since it first came out, for example.
On the other hand, BitLaw does also point out:
However, it is possible for descriptive marks to "become distinctive" by achieving secondary meaning. Secondary meaning indicates that although the mark is on its face descriptive of the goods or services, consumers recognize the mark as having a source indicating function. Once it can be shown that a descriptive term or phrase has achieved this "second meaning" (the first meaning being the generally understood meaning of the term or phrase), a protectable trademark is developed. Secondary meaning can be achieved through long term use, or large amounts of advertising and publicity. The acquisition of secondary meaning is often proven through the use of consumer surveys, that show that consumers recognize the mark as a brand, such as "FORD", as opposed to a descriptive term, such as "reliable".
Apple seems to be banking on its “App Store” having developed a strong enough secondary meaning to be protectable. And the fact that Android’s App Store is launching with a new “Angry Birds” game (a game whose first fame came from the Apple App Store) does explain why Apple is so concerned.
At any rate, it’s more than a little weird that these two lawsuits where two competitors sue two other competitors in the same market should appear on the exact same day. We’ll just have to see where they go from here.
All Apple is doing, much like Microsoft, is cement my intense dislike of them & my desire to do as little business with them as possible. I already do no business at all with Apple, & I certainly don’t plan on starting now. Microsoft, well, I have to live with them a little while longer but even still most of my work & pleasure is done on Linux systems.
To the best of my knowledge this is a symptom of the ridiculously loose US patenting system that allows people to patent all kinds of user interface and language cr@p not allowed in most of the rest of the world. Once that system exists it is daft to blame the companies. They have a duty to work within the system on behalf of their shareholders.
Howard said, “Once that system [patenting law] exists it is daft to blame the companies. They have a duty to work within the system on behalf of their shareholders.”
Maybe so, but I still don’t have to like Apple or Microsoft or the way they do business in general. Anyway, Apple’s claim to the trademark on ‘app store’ is being contested so they don’t necessarily have complete legal claim to it. It would seem proper perhaps to actually secure the rights & then start filing lawsuits. Oh, BTW, it’s Microsoft who are contesting Apple’s claim to ‘app store.’ Go figure.
Anyway, I’ll agree with you that the patent & copyright laws in America are ridiculous.
This is about trademarks and not patents. Apples and Oranges.
Whether that trademark holds up in court or not, Apple has to defend it if they want to keep it until the courts decide if it’s theirs or not. They are just following the rules.
Patents, on the other hand, have an expiration date. Big companies use them as bargaining chips and patent trolls use them to make money ( Neither Microsoft nor Apple are patent trolls.)