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Apple Forfeits Claim to the 'App Store' Name

By Peter Suciu MacNewsWorld ECT News Network
Jul 10, 2013 5:00 AM PT

Apple on Tuesday ended its lawsuit against Amazon over the right to use the "app store" name. U.S. District Judge Phyllis Hamilton in Oakland, Calif., ordered that the case be dismissed at Apple's request, heading off a trial that was scheduled to begin in August.

Apple Forfeits Claim to the 'App Store' Name

Apple has been selling apps for its iPhone and iPad devices via its iTunes App Store since July 2008. Amazon launched its own store, the Amazon Appstore for Android, in March of 2011.

Apple initiated a legal challenge that month but said Tuesday that it no longer saw a need to pursue the litigation.

"We're gratified that the court has conclusively dismissed this case," said Amazon spokesperson Mary Osako. "We look forward to continuing our focus on delivering the best possible appstore experience to customers and developers."

Apple did not respond to our request for further details.

An App by Any Other Name

Apple's lawsuit alleged that Amazon was misusing the "app store" name in violation of its trademark. However, the legal arguments centered on whether the term was one that truly could be seen as proprietary rather than generic.

Apple Chief Executive Tim Cook himself has used the term "app store" generically, Amazon noted in its court filing, when referring to Android "app stores," which suggested that even Apple knew the term had become commonplace.

"The term 'app store' and the term 'app' are both so generic that it is probably hard to litigate," said independent technology and social media analyst Billy Pidgeon. "They may have been the first, but it is so generic that it is difficult to defend."

Had Apple gone to trial, it might have been hard-pressed to make a persuasive case.

"Apple had little chance of winning," said Mark Borghese of Borghese Legal.

"It is possible that early on -- very early on -- there may have been some confusion," Borghese told MacNewsWorld, "but as these words become more and more common, they cease to have any trademark meaning."

Not Worth the Cost

A win was uncertain for Apple, but one thing that wasn't up in the air was the burden of going to trial. That could be one reason Apple opted to pull the plug.

"Litigation is enormously expensive and time consuming," said Dan L. Burk, law professor at the University of California at Irvine School of Law.

"A company is almost always better off finding a business solution to a problem rather than going to court. It looks like Apple decided they could solve the problem in the marketplace rather than at the court house," he told MacNewsWorld.

"It is hard to claim trademark status for common terms that describe a general product or service rather than a specific brand," Burk continued.

"Even if they were once trademarks, terms lose that status if they pass into popular use," he explained. "For example, 'aspirin,' 'escalator,' 'elevator,' and lots of other common terms were once specific brands that lost their trademark status.

"Even if 'app store' was a trademark, it would be hard to defend if people use it non-specifically, rather than to refer to Apple's App Store. Many observers -- and also the judge in the lawsuit -- believed Apple was going to have a hard time pursuing this claim, making a business solution even more attractive."

Trademark in the Internet Age

Apple dominated mobile apps in 2008 when it launched its App Store for the iPhone and ran its successful "app for that" ad campaign. However, the fact is that most apps are produced by third parties.

Apple may share three letters with the word "application," but it must be noted that 'app' is in fact short for the latter not the former, Pidgeon told MacNewsWorld.

"The value now negligible," he said. "Apple could probably stand to rebrand the 'App Store,' and while they are Apple and that is tied to 'app,' we have to remember 'app' means programs and wasn't just short for 'Apple.'"

Unlike with products such as "Jell-O," "Kleenex" and "Band-Aid," the term "app" would have been very difficult to own from the start.

"The term is just so generic, and always has been, that it is hard for anyone to think there was confusion," Pidgeon noted, "but it also comes down to the question what it is worth, if anything. The word is more like 'supermarket' or 'bank' than something you'd think you could trademark -- it is that generic."

Given that companies must control their brands through domain names and URLs, it could be increasingly difficult to attempt to trademark generic terms.

"These words that start off as trademarks will become more generic in the Internet age," predicted Borghese. "Companies can't always control how people use words."

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