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APP STORE: Too Generic for Trademark Registration?

Friday June 24, 2011 at 4:45pm

Despite a recent California District Court ruling casting a pall over the validity of Apple’s APP STORE trade mark, the computer giant continues to take steps to stop others from using the trade mark.

This week the court ruled against Apple’s motion for a preliminary injunction which would have prevented Amazon from using the mark APP STORE to designate its own online store for Google Android-compatible applications.

The presiding judge, Phyllis Hamilton, predicted that Apple is unlikely to succeed in its case because it lacks “real evidence of actual confusion” between the trade marks.

Amazon had also argued that the term, APP STORE, is generic, cannot function as a trademark and should not be accorded the benefit of trademark registration. If the court ultimately accepts Amazon’s argument on the generic nature of the APP STORE mark, Apple will most likely lose its trade mark, which has not even been cleared for registration.

Despite these setbacks, Apple has continued to threaten others against using APP STORE and similar terms. Last week, open source software startup, Amahi, received a letter from Apple demanding they cease to use term, APP STORE, on their website.

Apple appears to be fighting on several fronts here. Microsoft, Apple’s major competitor for computer operating systems, is leading the opposition against Apple’s trademark registration for its APP STORE mark at the United States Patent and Trademark Office. Notably, Microsoft also develops and distributes a competing mobile OS – though its application distribution hub is called the Windows Phone Marketplace. Competitive brinksmanship aside, it is hardly surprising that the world’s largest software vendor should like to keep the word “APP” in the public domain. For the past few years (an eon in the tech world), Amazon has been Apple’s main rival in digital content distribution, establishing successful services for the delivery of songs, movies and books. More recently, Amazon has emerged as a player in the hardware market, with its Kindle e-reader competing (at least indirectly) with tablets like Apple’s iPad.

Apple’s motives for targeting a smaller company like Amahi are likely different. It seems that Apple may be trying to show that it is policing the “mark” against ‘genericide’ – the process by which a once-distinctive mark becomes part of common parlance and ceases to distinguish the goods of a particular undertaking.

Apple may be simply be issuing such warnings to help in its battle to keep the APP STORE trade mark alive and kicking.

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