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Today, Amazon.com launched a new store, Amazon Appstore for Android. But will the store’s name stick? Sorry Apple, I think it will because “app” is short for “application,” not “Apple.”
In anticipation of the Amazon Appstore’s opening, Apple filed a complaint late last week in the United States District Court for the Northern District Of California, alleging (among other things) trademark infringement under the Lanham Act. Apple asserts that the “consuming public . . . widely recognizes the APP STORE mark as designating Apple as the source of services and/or goods,” and that Amazon’s use of the term “Appstore” is likely to confuse consumers, misleading them to believe that Apple is affiliated with Amazon or that Apple approves Amazon’s goods. Apple seeks to enjoin Amazon from using the App Store mark. Although the United States Patent and Trademark Office (USPTO) approved Apple’s application for trademark protection after the company opened its ”App Store” in July 2008, Microsoft contested the mark in January 2011 and opposition proceedings are ongoing before the USPTO appeals board.
Though I admit that Apple’s App Store is not where I do my shopping, I certainly do not find Amazon’s use of “Appstore” confusing or misleading in the least. Trademark law simply does not protect generic terms, and “app” and “store” are both generic terms as far as I can see. Apple may be right in asserting that when it launched its App Store, the store offered a “revolutionary kind of online software service,” and that it has “prominently featured the APP STORE mark in print advertising” around the country. Apple may have even coined the term “app,” but it has not taken sufficient action to prevent the term’s genericide. For example, with fortuitous timing the American Dialect Society (“ADS”) named “app” the 2010 word of the year in January 2011 — the same month Microsoft filed its opposition proceedings asserting “App Store” was an unprotectable generic term. The word of the year, according to ADS, is “an abbreviated form of application, a software program for a computer or phone operating system.”
“App” does not stand for “Apple.” As Microsoft pointed out in its opposition filing, even Apple CEO Steve Jobs uses “app” as a generic shorthand for “application.” In its opposition to Apple’s trademark, Microsoft quoted Jobs as saying, “Amazon, Verizon, and Vodafone have all announced that they are creating their own app stores for Android. There will be at least four app stores on Android which customers must search through to find the app they want.” In its complaint against Amazon, Apple carefully refers to its competitors’ stores not as ”app stores” but as “software download services for mobile operating systems.” This lawyer-made language just doesn’t sound as sweet as “app store.” As Paul Thurrott argues, denying Apple’s competitors the ability to describe their online establishments as “app stores” is like “taking away a basic part of the language.” That’s why trademark law does not protect generic terms, and why Apple’s suit against Amazon should fail.
– Emily Beverage
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