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Apple, Amazon trademark spat turns surreal

'Our app stores aren't app stores'

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Apple has slapped back at Amazon in their messy legal tête-à-tête over whether the online megaretailer's Appstore for Android is a violation of Apple's trademark for the term "app store" – and its arguments are becoming increasingly surreal.

"Apple denies that the mark APP STORE is generic and, on that basis, denies that the Amazon Appstore for Android service is an 'app store'," Apple's legal team claims in a brief filed in US District Court for the Northern District of California on Thursday.

Among its point-by-point admissions and denials of Amazon's point-by-point April 25 rebuttal of Apple's original point-by-point March 18 lawsuit is an admission that, yes, Steve Jobs did indeed hurt his own case. After admitting that apps on mobile devices are, indeed, often referred to as, well, "apps", the filing adds: "Apple further admits that its CEO, Steve Jobs, in October 2010 called the APP STORE service 'the easiest-to-use largest app store in the world, preloaded on every iPhone'."

Which would seem to indicate that Jobs believes an app store is a place that sells apps, correct? Ah, but things aren't that simple in the funhouse-mirror legal laugh-scape.

Case in point: the filing also concedes that the Oxford English Dictionary defines an app as "[a]n application, esp. an application program," and that a store is, indeed, "a retail establishment selling items to the public: a health-food store."

These statements would seem to admit the obvious: that an app store is a store that sells apps. Apple, however, argues the opposite. "Apple denies that, based on their common meaning, the words 'app store' together denote a store for apps," the filing reads.

About what other possible meaning the words "app store" might have, the Cupertinian oracle is silent.

What's more, the filing contends: "Apple further denies that Amazon and Apple operated 'app stores'." The legal reasoning here appears to be pretzellian in the extreme: since an app store is not a store for apps, Apple's App Store and Amazon's Appstore are not app stores, but an App Store and an Appstore – and the Appstore is violating Apple's trademark on App Store.

Or so it seems.

Apple's Amazonian dust-up over the words "app" and "store" and their various combinations is not the only legal battle over those two words. After Apple filed for a trademark on the term "app store", Microsoft challenged that filing, arguing that "The undisputed evidence shows that 'app store' is a generic name for a store offering apps."

Nothing is ever "undisputed" when trademarks are involved, however. Apple contested Microsoft's arguments (in a font that Microsoft claimed was too small), saying that Microsoft was "missing the forest for the trees," and reminding the court of Redmond's use of the word "windows".

Microsoft – surprise! – responded to Apple's allegations, saying in a further legal filing: "Apple cannot escape the hard truth: when people talk about competitors’ stores, they call them 'app stores'."

The dispute has also spread to Europe, where Microsoft joined HTC, Nokia and Sony Ericsson to challenge Apple's trademark claim for the term "app store" in that part of the world. ®

Bootnote

What all of this trademark wrangling brings to mind is an exchange between Humpty Dumpty and Alice in Lewis Carroll's Through the Looking Glass:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean – neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master – that's all."

The smart choice: opportunity from uncertainty

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