Apple to Microsoft: 'App Store name is not generic'
Accuses lawyer of lifting nonsense from internet
Apple has shot back at Microsoft's attack on Cupertino's attempt to trademark the term "App Store", saying that Redmond's argument is based on "out-of-context and misleading snippets of material printed by its outside counsel from the internet."
Ah, those stupid, stupid outside counsels and that stupid, stupid internet.
Redmond had claimed that the term "App Store" is too generic to trademark, but naturally, Apple sees things differently. "Having itself faced a decades-long genericness challenge to its claimed WINDOWS mark, Microsoft should be well aware that the focus in evaluating genericness is on the mark as a whole and requires a fact-intensive assessment of the primary significance of the term to a substantial majority of the relevant public," Apple's counsel writes in a 62-page filing with the US Patent and Trademark Office (the emphasis is Apple's).
"Yet, Microsoft, missing the forest for the trees," the filing continues somewhat snarkily, "does not base its motion on a comprehensive evaluation of how the relevant public understands the term APP STORE as a whole."
Microsoft argues in a January filing that both "App" and "Store" are generic, and thus can't be trademarked – an argument, Microsoft said, that's based on "undisputed facts".
Not so, says Apple. One entire section of its filing is entitled "Microsoft’s 'Noun Plus Store' Test Grossly Oversimplifies the Genericness Test," and another is called "The Fact That Mainstream Dictionaries Do Not Have a Definition for the Term APP STORE Supports a Finding that the Term is Not Generic."
Microsoft also argues that since the press has used the term "app store" as a generic term to describe other, well, app stores, the term must be generic.
Apple isn't buying that argument, either. "What is missing from Microsoft's submission is any evidence, expert or otherwise, regarding whether such uses represent a majority of the uses of the term or simply a small, inconsequential subset of how the relevant public uses the term APP STORE."
To prove that point, Apple rolled out an opinion by Dr. Robert Leonard, whom the filing describes as "a renowned linguistics expert". That worthy, according to Apple, "concludes that 'the predominant usage of the term APP STORE is as a proper noun to refer to Apple's online application marketplace.' If there can be any doubt regarding whether genuine issues of fact exist warranting trial (and there should not be)," the filing continues, "Dr. Leonard's declaration unquestionably removes it."
Leonard's conclusion wasn't based on mere opinion, as the filing notes. "Dr. Leonard analyzed references to APP STORE appearing in The Corpus of Contemporary American English (COCA), an online collection of over 410 million words of popular texts," which Leonard described as "...accepted among experts in the field of sociolinguistics as representative of current language use."
COCA-combing led to Leonard's discovery that "88 per cent of the references to APP STORE in that database constitute references to Apple's APP STORE service." And if 88 per cent was good enough for Leonard, it was good enough for Apple – and, from Cupertino's point of view, it should be good enough for the USPTO.
Leonard also badmouthed the procedures used by Microsoft's outside counsel, Nathaniel Durrance, to develop his argument against Apple. Durrance "selectively chose his evidence and submitted only those pieces of evidence that he concluded were helpful to his argument that APP STORE is a generic term. This approach is antithetical to scientific analysis, including linguistic analysis," Leonard writes, accusing Durrance of cherry-picking.
"Mr. Durrance's untutored survey is entitled to no weight whatsoever," Apple argues. "Microsoft has failed to meet its high burden of proof necessary to prevail..." the filing concludes.
Perhaps. Perhaps not. It's now up to the USPTO Trademark Trial and Appeal Board to decide whether to side with Microsoft's original Opposition filing, or to allow the dispute to go to trial. ®
Oh, FFS... Apple.. here we go again...
Geez, just go get a dictionary and trademark every damned word in it now already, will you?
BTW, just to let you know, Apple, I have like 3 macbooks in my house (tended to buy one every 2-3 years), but in the past year, your behaviour has been gradually p1$$1ng me off more and more. I used to think of you as just a moderately evil company which was somewhat tolerable.
You are now Sony to me.
Persona Non Grata.
Undoubtedly, some of your machines are sexy and reasonably well built but now I figure the cost (non-monetary) is untenable.
I know, that means little to your profit margin. I have friends. I know, that still means little to your profit margin.
But you're not getting any more $$$ off me any more.
When someone can actually say they feel less terrible about themselves handing out $$$ to M$, you got to wonder if you're doing something wrong.
And you can never tell where this may lead to if I'm not the only one starting to feel this way....
I'm sick of this nonsense
I don't care who got there first. I din't give a rats arse.
Stop trying to divide off and claim parts of our language you miserable corporate bastards. If you want to trademark and claim words as yours then at least have the decency to make up some new ones.
Tux, because linux had app stores before either party. And they're free...
ha ha ha haaaaaa
"The Fact That Mainstream Dictionaries Do Not Have a Definition for the Term APP STORE Supports a Finding that the Term is Not Generic."
Nope nor do they have "Walking up the road", "Staying in Bed" or "Going for a Pint"
Something do with dictionaries having defined words, not common phrases perhaps?
Now I'm off to trademark "Software Download"