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Apple's 'App Store trademark': A farce of Jobsian proportions

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Microsoft has once again stood up to Apple's epically ridiculous attempt to trademark the term "app store", filing another request that the US Patent and Trademark Office deny Apple's trademark application in full.

"Apple cannot escape the hard truth: when people talk about competitors’ stores, they call them 'app stores.' You don’t have to look far to find this generic use – The Washington Post, The New York Times, The Wall Street Journal, and even Apple’s CEO Steve Jobs," reads Microsoft's latest filing with the US Trademark and Patent Office.

"The undisputed facts establish that 'app store' means exactly what it says, a store offering apps, and is generic for the retail store services for which Apple seeks registration. Apple does not contest that its other services are ancillary and incidental to its retail store services. Summary judgment should be entered denying Apple’s application in its entirety."

Microsoft has also retained a linguistic expert, Dr. Ronald R. Butters, Professor Emeritus, English and cultural anthropology, at Duke University, who backs Microsoft's ongoing claims that the app store name is generic. "The compound noun app store means simply ‘store at which apps are offered for sale’, which is merely a definition of the thing itself – a generic characterization," he writes in a declaration filed with the USPTO.

Butters also provides evidence that Apple was not the first company to use the "app store" name. He cites an account of a February 2007 conference at which Salesforce CFO Steve Cakebread referred to an upcoming portion of the company's AppExchange platform as "app store checkout". "In terming their 'AppExchange' marketplace an 'app store,' Mr. Cakebread simply used 'app store' generically – over a year before Apple opened its app store with a blitz of publicity," Butters writes.

He points out that both Saleforce.com (2006) and Sage Networks (1998) filed for trademarks on "appstore" before Apple made its bid for "app store". But he says it doesn't really matter whether Apple or was first to the term or not. "Even if Apple was the first company to use the term 'App Store' (which it was not...) app store was generic even when it was first used in the sense ‘store at which apps are offered for sale’, regardless of who the first user was," he writes.

“To me, app store is entirely generic, completely un-protectable, and it's farcical that Apple has been pushing the issue as far as it has. It's completely embarrassing for them, and they just should let it go”

– Eric Goldman, tech law mind

He makes much same argument Microsoft has made many times before. "Linguistically, a generic term is a term that names the thing itself," he writes. "A computer store is a store at which computers are central to that which is offered for sale. A stationery store is a store at which stationery is central to that which is offered for sale. A grocery store is a store at which groceries are central to that which is offered for sale. And if next month a new and suddenly popular use is developed for the maser and someone launches a store at which masers are central to that which is offered for sale, that will be a maser store.

"The construction {Noun + store}, in which the Noun names some type of goods or services offered for sale, is a productive process in which the results are semantically transparent – that is, in which the meaning of the resultant compound is immediately obvious to the hearer. The term does not merely describe the thing named, it is the thing named."

Eric Goldman – an associate professor at Santa Clara University School of Law, director of the High Tech Law Institute, well-known tech law blogger and friend of The Reg – agrees.

"To me, app store is entirely generic, completely un-protectable, and it's farcical that Apple has been pushing the issue as far as it has. It's completely embarrassing for them, and they just should let it go," Goldman tells us. "App is a recognized shorthand for application, another name for software. It's like saying: 'I was the first person to call myself the bagel store.' Even if you're first, you still can't protect 'bagel store'. Some else can call themselves the bagel store if they're selling bagels."

He points out that the Federal Circuit Court of Appeals recently ruled that names such as Mattress.com and Hotels.com cannot be protected. "These are retailers of the noun that's in their domain name," he said. "But 'noun plus .com' is still unprotectable. Just like 'noun plus store' is unprotectable."

Goldman, for what it's worth, has no ties to Microsoft. Or to Apple.

Apple has pushed the issue so far that it's now suing Amazon. Steve Jobs and cult take issue with the Amazon Appstore, which is, well, an app store the company launched last week. Apple sued Amazon a day before the store opened.

According to Eric Goldman, this is additional evidence that Apple's trademark crusade is nonsense. "Companies that have particularly weak trademarks tend to be overly aggressive in litigation because they're trying to scratch and claw to get something out of nothing," Goldman said. "It's a sign of how desparate Apple is." ®

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