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Web souk wants false advertising claim binned in App Store lawsuit

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Amazon has asked a US court to lop off an allegation of false advertising from Apple's trademark lawsuit against the Amazon Appstore.

Apple launched legal action last year alleging that the Amazon Appstore for Android is a trademark violation of Apple's App Store. On top of the trademark kerfuffle, Apple also claimed that Amazon's use of the word Appstore in marketing material is false advertising.

Both companies are going head to head in the mobile gadget world: Apple's iOS operating system powers its iPhones, iPads and iPods, and a huge range of software for the reassuringly expensive gear is available from Apple's App Store. Amazon's Appstore, meanwhile, touts programs for its Kindle tablets and other manufacturers' devices powered by Google's Android system.

In a filing yesterday, Amazon asked the judge to throw out the false advertising allegation because it had no proper place in a trademark suit, and that "app store" is a generic term.

"The word 'Appstore' is part of the name of Amazon’s store; it is not a statement about the nature, characteristics, or qualities of Amazon’s store, much less a false one," the filing stated. "What Apple is actually contending is that the use of 'Appstore' may confuse consumers into believing that the Amazon Appstore is related to or sponsored by Apple.

"Leaving for another day whether that is a reasonable contention, it is clearly one that sounds in trademark, not false advertising."

Apple hopes to prove that Amazon's use of Appstore confuses people into thinking that its service "has the characteristics and/or qualities of Apple's App Store services". But Amazon claims that Apple itself uses "app store" generically and the term is not exclusive to fruity iOS apps.

"Apple’s former and current CEOs have both used 'app store' in reference to Apple’s competitors’ stores for apps," Amazon said in its filing.

"For example, [the late] Apple CEO Steve Jobs touted the superiority of Apple’s 'integrated App Store' in comparison to what he described as the 'four app stores on Android'.

"[Current CEO] Tim Cook echoed the same theme: 'We fundamentally believe that our integrated approach delivers a far superior customer experience than the fragmented approach. And you can see this in a variety of ways from the fragmentation of the number of App Stores out there that people are going to pull their hair out, because they’re going to have a variety of updating methodologies, and a variety of payment methods, and slightly different derivatives'," the etailer added.

A hearing on Amazon's motion is due at the end of October, and a trial, if it comes to that, is scheduled for August next year. ®

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