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  1.    #1  
    Microsoft: Apple can't claim exclusive rights to 'App Store'
    Todd Bishop on Tuesday, January 11, 2011, 12:44pm PST

    Should the phrase "App Store" be Apple's alone? Microsoft says no, and it's fighting for the right to use those words for its own mobile application store.
    The Redmond company this week escalated its battle against Apple's attempt to trademark the term "App Store" -- asking the U.S. Patent and Trademark Office to refuse the iPhone maker's registration request on the basis that it's a generic name, not something to which Apple can lay exclusive claim.

    "Any secondary meaning or fame Apple has in 'App Store' is de facto secondary meaning that cannot convert the generic term 'app store' into a protectable trademark," write lawyers for Microsoft in a motion for summary judgment, filed yesterday with the Trademark Trial and Appeal Board.

    "Apple cannot block competitors from using a generic name. 'App store' is generic and therefore in the public domain and free for all competitors to use."


    Microsoft's filing notes that media commonly refer to "app stores" on all sorts of mobile platforms, not just on the iPhone. The filing also points out that Apple CEO Steve Jobs has used the phrase generically, as well -- once referring in an interview to new Android "app stores."
    In the meantime, Microsoft says it and other Apple rivals are being forced to use alternative names for their app stores -- such as "marketplace," in the case of Microsoft's Windows Phone app store -- pending the outcome of the Apple trademark proceedings.
    Here's a copy of the Microsoft's filing: PDF, 27 pages. It doesn't make reference to the the Mac App Store, launched by Apple last week, but Apple's "App Store" trademark filing refers broadly to computer software, not just applications for mobile devices.

    Apple has stuck to its guns in the case, saying in response to an earlier Microsoft filing that "the vastly predominant usage of the expression 'app store' in trade press is as a reference to Apple’s extraordinarily well-known APP STORE mark and the services rendered by Apple thereunder." (PDF, 8 pages)

    The company noted at the time that "any unauthorized use of the APP STORE mark by retailers is an attempt to trade on the goodwill associated with Applicant’s well-known APP STORE mark."

    Here's an earlier blog post by a trademark attorney with more background on the case -- including details of Apple's previous argument that the phrase "creates a clearly recognizable double entendre" in that "app" would "be immediately recognized as a variant of the applicant’s well-known APPLE STORE mark.”
    In other words, Apple was contending that "app" was short not only for application but also, in its case, for Apple.
    We've contacted an Apple spokesman for comment on Microsoft's motion for summary judgment, and we'll update this post depending on the company's response.

    Microsoft: Apple can't claim exclusive rights to 'App Store'




    A little insight as to what is being fought here...
    Genericized trademark - Wikipedia, the free encyclopedia

    A genericized trademark (also known as a generic trademark, proprietary eponym) is a trademark or brand name that has become the colloquial or generic description for or synonymous with a general class of product or service, rather than as an indicator of source or affiliation ("secondary meaning") as intended by the trademark's holder. Using a genericized trademark to refer to the general form of what that trademark represents is a form of metonymy.

    A trademark is said to fall somewhere along a scale from "distinctive" to "generic" (used primarily as a common name for the product or service rather than an indication of source). Among distinctive trademarks the scale goes from strong to weak:

    • "Arbitrary": having no meaning as to the nature of the product
    • "Fanciful" or "coined": original and having little if any reference to the nature of the product or service
    • "Suggestive": having primarily trademark significance but with suggestion as to nature of product
    • "Descriptive": not just suggesting, but actually describing the product or service yet still understood as indicating source
    • "Merely descriptive": having almost entirely reference to the product or service but capable of becoming "distinctive".


    A trademark is said to be genericized when it began as distinctive but has changed in meaning to become generic. A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service to such an extent that the public thinks the trademark is the generic name of the product or service. A trademark thus popularized has its legal protection at risk in some countries such as the United States, as unless the owner of an affected trademark works sufficiently to correct and prevent such broad use its intellectual property rights in the trademark may be lost and competitors enabled to use the genericized trademark to describe their similar products.

    Genericization or "loss of secondary meaning" may be either among the general population or among just a subpopulation, for example, people who work in a particular industry. Some examples of the latter type from the vocabulary of physicians include the names Luer-Lok (Luer lock) and Port-a-Cath (portacath), which have genericized mind share (among physicians) because (1) the users may not realize that the term is a brand name rather than a medical eponym or generic-etymology term, and (2) no alternate generic name for the idea readily comes to mind.

    Most often, genericization occurs because of heavy advertising which fails to provide an alternate generic name or which uses the trademark in similar fashion to generic terms. Thus, when Otis Elevator Company advertised that it offered "the latest in elevator and escalator design" it was using the well known generic term elevator and Otis's trademark "Escalator" for moving staircases in the same way, the Trademark Office and the Courts concluded that if Otis used their trademark in that generic way they could not stop Westinghouse from calling its moving staircases "escalators", and a valuable trademark was lost through "genericization."

    The evolution of the naming conventions of the pharmaceutical industry is linguistically interesting because it systematically avoids genericization confusion for new drug names. New drugs today have both trade names and generic names right from the beginning of their commercialization. Thus genericization examples such as aspirin, panadol, and heroin, which originated in an earlier era of drug naming practice, are less likely to occur today. Given that nowadays many new drugs are commercialized each decade, having a way to control naming clarity is important.

    your thoughts...
  2. #2  
    I agree.

    They shouldn't be able to name it the "Apple app store" but as far as "app store" that's for anyone to use.
  3. #3  
    I think in the past few minutes I have said "app store" so many times out loud it just sounds weird now.

    kinda off topic but i hate how everyone gives credit to apple for the whole mobile phone app phenomenon, I remember putting "apps" on my Palm Handspring visor deluxe that i purchased in 2000.
  4. #4  
    Well Apple was the first to make a unfied app store that anyone could get into if they followed the rules.

    Before it was Sprint or Verizon mobile market on certain devices that was really only applications from partners.

    All the good Palm apps were on personal websites.



    Anyway, i agree...it would be like if Exxon trademarked "Gas Station"
  5. #5  
    This is funny coming from the company that managed to trademark the word "Windows". The patent and trademark office declined the request and Microsoft fought to overturn it...

    Microsoft Trademark Setback - NYTimes.com
  6. #6  
    Quote Originally Posted by Cantaffordit View Post
    This is funny coming from the company that managed to trademark the word "Windows". The patent and trademark office declined the request and Microsoft fought to overturn it...

    Microsoft Trademark Setback - NYTimes.com
    What you're saying is that Microsoft should win this :P
  7. #7  
    Let em have it; windows phone 7 should use.............

    the "App Corral"
  8. #8  
    Quote Originally Posted by Mattykinsx View Post
    What you're saying is that Microsoft should win this :P
    No, I'm saying that if MS can win a trademark for the word "windows" - which they eventually did... then why is the phrase "app store" any different?

    I don't think Microsoft can have it both ways...
  9. #9  
    Quote Originally Posted by Maestro1 View Post
    I think in the past few minutes I have said "app store" so many times out loud it just sounds weird now.

    kinda off topic but i hate how everyone gives credit to apple for the whole mobile phone app phenomenon, I remember putting "apps" on my Palm Handspring visor deluxe that i purchased in 2000.
    Give credit where credit is due. Who started the phenomenon and made indie developers millionaires?

    On topic: I agree, "App Store" shouldn't patentable.
  10. #10  
    Quote Originally Posted by Cantaffordit View Post
    No, I'm saying that if MS can win a trademark for the word "windows" - which they eventually did... then why is the phrase "app store" any different?

    I don't think Microsoft can have it both ways...
    Good point.
  11. #11  
    Quote Originally Posted by barkerja View Post
    Give credit where credit is due. Who started the phenomenon and made indie developers millionaires?

    On topic: I agree, "App Store" shouldn't patentable.
    I thought Handango did that... kidding, you make a good point.
  12. #12  
    MS only has a trademark for the word windows when it comes to probably software and computer related electronics.

    Similarly to how Monster has a trade mark for the word "Monster" when relating to electronics and cables and wires and such. That is why they lost their lawsuit against Monster job website.

    If apple wins this then "app store" trademark will only be limited to application marketplaces for mobile phones and such.
  13. #13  
    I dont think Apple should have rights to those two words "App Store" but I think Microsoft should come up with their own name. Apple has App Store, Android has Android Market, Palm has App Catalog. Its already set in motion to have each OS have their own name for it.
  14. #14  
    So apple should be able to claim "app store" as it relates to putting an app store on a mobile device. You are confirming that Microsoft is trying to have it both ways.
  15. #15  
    Quote Originally Posted by Maestro1 View Post
    I remember putting "apps" on my Palm Handspring visor deluxe that i purchased in 2000.
    And what did you call those, when you did it?
  16. #16  
    Quote Originally Posted by Cantaffordit View Post
    No, I'm saying that if MS can win a trademark for the word "windows" - which they eventually did... then why is the phrase "app store" any different?

    I don't think Microsoft can have it both ways...
    Good point.
  17. #17  
    Check this out.

    Palm Software | Palm USA

    HP/Palm even refers to their old "apps" in the "Apps Store." But they also say "Software Store" so I don't know.
  18. #18  
    Quote Originally Posted by Cantaffordit View Post
    So apple should be able to claim "app store" as it relates to putting an app store on a mobile device. You are confirming that Microsoft is trying to have it both ways.
    I disagree though...the term is far to generic.

    The term windows, when MS wanted it trademarked was referring to a operating system specifically.

    If Apple wants to just trademark "App Store" which in itself, would be a genric term to describe ANY store that sold applications, is a bit more vague.

    Again my example...what if Shell wanted to trade mark "Gas Station?"

    People would think they are wacky. Gas station is just a station that sells gasoline.
  19. #19  
    Regardless, Microsoft uses the term Marketplace with whatever device is being used.

    So Windows Marketplace or Xbox Live Marketplace.

    I don't see why they care all that much other than to be able to use the term to describe what it is without being sued.
  20. #20  
    I think this person said it best:

    It looks like you're trying to block Apple's trademark of "App Store" because it's generic. Do you have Windows in your Office?
    https://twitter.com/paperclippy/stat...88063525584896
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