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

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 …

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Gates Horns

How Funny

Oh, but Windows is so much more descriptive, even though having windows on your screen is totally generic. Typical Microsoft.

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Linux

That is why you will find my posts...

...habitually (ie, unless I forget) referr to Microsoft's OS as "MS-Windows". Or even "Microsoft Windows" if I'm feeling unusually energetic. As opposed to "X-windows", which are one of the things you will find on my own PC at home.

(Notice I grew out of using the dollar sign for the 's' several years ago - it was fun for a while, but in the end saying a public company is primarily interested in money is a bit like saying a shark is primarily interested in eating seals.)

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...and...

...if Microsoft were selling a product that involved plugging a hole in the side of a building with a stylized, transparent or translucent covering intended to provide protection from weather and temperature changes, that would make sense.

But 'Windows' in this context is not entirely like the '[item] store' example - by which I mean that it's completely different. A 'window' is not the product Microsoft is selling. Even if one were to assume that 'window' in the context of software is literally the same as 'window' in its real world context, Microsoft is still not selling windows themselves, but an app... err, operating system capable of providing a context for that paradigm.

Come back and rephrase your self-righteous post when Microsoft tries to trademark, "An operating system capable of providing a windowed user environment". Until then, go back to doing whatever it is you do to prop up your ego.

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FAIL

Wrong comparison

If Microsoft were selling actual windows, you know, those square thingies you have in your house or flat, then you would have a case against Microsoft.

I could make an OS and call it Bagel; but unlike 'bagel store', I would actually have a shot at trademarking that. Just look at "BlackBerry" as an example of trademarking a generic word for something that isn't quite the thing referred to by the word.

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Stop

Bully for you LaeMing

However Microsoft have a trademark and copyright on Windows, not Microsoft Windows.

I'm sure if someone wrote an application for editing just the page at the front of a website, and called it Frontpage Editor, MS would be fine with that also, it's just describing an editor for frontpages.

Apple are being ridiculous, but MS are just annoyed they didn't trademark it first.

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Not quite the same!

In this case, "app store" is a generic term that describes what the actual subject is. "Windows" is trademarked as the name of the actual operating system, not the name of the graphically divisible application instances within it; it's perfectly acceptable to refer to such instances as "windows" with no trademark infringement.

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Anonymous Coward

How Funny

Yeah, but Apple seem to have a track record of greedy heavy-handedness when it comes to trademarks. Remember when they went after the Aussie trowel maker last year for their trowel which was called an Ipood:

http://www.reghardware.com/2010/07/22/ipood/

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Stop

ah but MS does not sue

when Windows is used elsewhere - like x-windows, windows that let light into my house and so on.... ;-(

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Surely BlackBerrry...

... is slightly more specific than a blackberry. One presume they have not trademarked a fruiting body?

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Anonymous Coward

'Windows' is generic within IT

@David W.: "A 'window' is not the product Microsoft is selling"

The term 'window' was already in generic use before MS Windows, and it has caused a lot of confusion. I remember training users on the Mac, and the look of bewilderment when I referred to 'windows' on the screen. MS took a completely generic term from the rest of the IT marketplace (which they actively used) and took legal action against anyone who came even close to it - you may recall the 'Lindows" saga, which degenerated into farce when MS objected to even the name 'Linspire". No, this is pure hypocrisy on MS' part. But it's also the nature of business the business world unfortunately.

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Dirty hands

While I think "app store" is generic, so is "windows" and MS do have form for doing exactly what Apple are doing here. They sent out cease and desists left and right in the past to protect the use of windows often for tenuous reasons. For example the cross-platform toolkit wxWidgets used to be called wxWindows until a cease and desist.

I don't particularly care if MS win or not, but I think they're going to find it tough to win "app store" might be made of two generic words but it's not like it was common parlance until Apple popularized the term. They could wheel out any professor they like and it wouldn't change that. Maybe they should have just avoided the term altogether in the first place.

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Trademarks are funny things

I don't know if RIM have trademarked Blackberry. But I bet they have. Here's why it isn't a problem. Trademarks are recognised as applying in a context. A good example is Apple Computers and Apple Records. For many years the two have existed side by side because they operated in completely different fields, attempts by Apple Records to claim infringement (as Apple dropped Computers and got more into music sales) have failed, because confusion of the two brands is highly unlikely.

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FAIL

Off the mark...

"If Microsoft were selling actual windows, you know, those square thingies you have in your house or flat, then you would have a case against Microsoft."

Good effort, but so very wrong. The fact that the boxes that contain the GUI elements that allow you to operate and manipulate your software are called "windows", and have been since the very concept of GUIs have been in existence, make it a genereic *computing* term. You whipper-snappers need to learn that Microasoft didn't invent computing.

"I could make an OS and call it Bagel; but unlike 'bagel store', I would actually have a shot at trademarking that. Just look at "BlackBerry" as an example of trademarking a generic word for something that isn't quite the thing referred to by the word." Your are absolutely right. As mentioned though, a window is a GUI element. a group of these is refered to as 'windows'.

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All of this Microsoft Windows discussion is irrelevant

It matters not a jot whether Microsoft have a history of trademarking generic terms, that is not what is at issue in this case. Just because the USPTO have previously granted trademarks that may or may not be generic does not mean they should grant this one to Apple.

Each case should be judged on its merits, not on the history of either protagonist to the case.

Both sides in this seem to be acting as rational businesses, Apple are trying to create intellectual property which gives them a trading advantage and Microsoft are trying to stop a competitor from gaining an advantage through the creation of intellectual property. Microsoft have a history of being on the other side of the debate, so what? It may be a bit rich, but someone should be trying to prevent Apple from gaining this advantage, so it may as well be Microsoft.

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Anonymous Coward

Windows

Oddly enough MS themselves rarely refer to their OS simply as "Windows". Not, I suspect, because they accept that it's a generic term, but because they like to take every oportunity to publicise their latest and greatest. So it's usually Windows 7 or Windows Server 2008 or whatever.

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This argument would only work if...

MS had called their operating system "Operating System" and tried to trade mark that. End of.

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Yup

WIMP - Window Icon Menu Pointer

According to Wikipedia (take that from that what you will) the term WIMP which refers to windows as part of the UI was coined in 1980. The first Microsoft OS to be called Windows was in 1985... 'window' was already an entirely generic term when MS trademarked Windows.

I had a feeling that there were certain provisos with the Windows trademark though, so I just looked it up... sad I know. Yes, Windows is trademarked but windows isn't and it only refers specifically to the OS.

As for Lindows - MS may well be sore because when they took Lindows to court questions were actually raised about the genericness of the term Windows. Rather than pushing through with it and potentially losing their trademark MS just used their massively superior wodge of cash to convince Lindows to sell their trademark.

My guess is that Apple are trying to discover if they can find a court stupid enough to grant them a far-reaching 'app store' trademark BEFORE they throw away shed loads of cash on branding and marketing. The law is largely based on precedent and they're trying to set one (whereas MS were trying to avoid one by settling with Lindows out of court).

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Anonymous Coward

"...but it's not like it was common parlance until Apple popularized the term."

Further to that, Apple have been using the "app" nomenclature since at least 1984, whereas Microsoft went with "programs". Apple appear to have a legitimate claim to coining the term "app" in the desktop space, and certainly in the mobile space.

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Stop

Microsoft does sue

Microsoft sued Lindows to protect the generic Windows trademark.

Of course, they figured they would lose that trademark in the process so they paid Lindows some $30 million so that Lindows would change to Linspire and let Microsoft out of the law suit.

It is rare indeed that a plaintiff pays the defendant in a trademark suit in order to let it drop the suit.

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Stop

true and notice Vista

Notice that Microsoft also tried to use Vista as a trademark. Their lawyers finally convinced management that "windows" could be lost soon. And their lawyers were right.

SUSE Windows anyone?

Or, Red Hat Windows?

Or, Ubuntu Windows?

Or, WebOS Windows?

Or, Android Windows?

Sounds to me like just about any company could use the windows noun as part of their trademark and get some $30 million from Microsoft just for asking. And Microsoft would have to pay or risk the chance of losing the windows trademark.

And that is the problem with generic trademarks like "app store" and "windows". If the term has a generic meaning in the industry, it can be lost as a trademark at any time.

Does "windows" have a generic meaning in the industry other than the name of a particular OS? It sure does. And that remains to be the case.

Same with "app store". It is just the generic name for a thing. A place where you buy apps.

What do you call such places if not app stores?

Clearly Apple thinks it has a monopoly. And it acts like it. Demanding a 30% cut of your business or you will be blocked from customes owned and controlled by Apple.

Apple customes are really the slow learners here. Having more money than brains they think that Apple is acting in their best interest. Nothing could be further from the truth.

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Interesting....

Lets think about this for a moment. is the term app store not the same as say Kleenex. They have simply re-branding the social norm for the real word name for facial tissue? Just because it is what the general population call it doesn't make it free to use by all.

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Interesting...

I see that lawsuit holding up much more in court especially if Apple Records has been around longer.

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WTF?

RE: Dirty hands

"it's not like it was common parlance until Apple popularized the term. "

Err for you and for the rather clueless Apple clowns but for us, mobile device users buying applications online from a store is rather obvious since 2000-ish when Handango opened its 'doors' - they actually invented the current system: running an app on your device - a.k.a. Market - and buying and getting apps there...

Stop defending APple's absolutely pathetic and ridiculously douche moves like this - remember: APPLE NEVER INVENTED ANYHING, NEVER EVER, NOT A SINGLE THING, NADA, NIL so if someone should really STFU about copying others it's APPLE and personally Steve "Freedom From Porn" Jobs, Puritan-in-Chief of Apple..

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So?

But Apple called their downloadable software "apps", not everyone uses that term to describe software.

Some people say program, some say application, not quite so many people used the term "app" until the app store arrived.

Also, if you look at Applications on a Mac, their file extension is .app. That's not to say they have a copyright on filenames but you can see why Apple think it is part of their technology and branding.

If Microsoft can stop a piece of software being called Lindows then Apple should be allowed to stop a software store being called App Store.

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Grenade

How pathetic

Prick / mofo / whatever you transatlantics find offensive.

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FAIL

@Levente Szileszky

Yeh right, non of the 580 odd patents that Apple were granted last year were new and inventive (and a large proportion of them were for hardware improvements BTW, not just software).

Very few companies come up with inventions that are completely unlike something that came before. Apple are good at combining their own technology and design with off-the-shelf parts to produce the first examples of a class of device that consumers actually want to buy. There were MP3 players before the iPod for example (I owned some of them), but they were nasty clunky things in comparison. Apple at least have to good grace to license technology that doesn't belong to them (Apple vs Nokia is mainly an argument over who's patent pool is bigger and hence who has to pay whom how much). Microsoft have a much worse track history for both inventiveness and patent infringement.

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@ Raph 5 - In support of this argument

I have an old Commodore Amiga user manual that describes the OS as being a 'Windows, Icon, Menu, Pointer' system. The manual pre-dates Microsoft Windows by a few years.

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Stop

Enough with the 30%, Lewis...

It has absolutely nothing to do with the article. 30%, by the way, is less that the cut Handango take, considerably. It is also a reasonable handling fee for distribution, error checking, testing, hosting and payment prossing to name only a portion of what the fee covers. Do yoy really think that $99 covers that anually?

"Apple customes are really the slow learners here. Having more money than brains they think that Apple is acting in their best interest. Nothing could be further from the truth." Trolling? Total lack of relevance? I thought this was againt the house rules?

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Stop

Calm down Levente...

Handango never called the software "Apps" prior to the App Store opening. You can use the waybackmachine to check if you want. Here is the entry from July the 19th 2008: http://replay.waybackmachine.org/20080719023515/http://www.handango.com/home.jsp?siteId=1 You'll notice that the page's title is "Mobile Software and Games for your PDA or Smartphone : Handango", Not a single mention of the word 'app' anywhere and none on the rest of the site for that matter. No one is disputing that mobile *software* existed before Apple came along with iOS, just that Apple introduced the term into general usage, maybe not in general within the computing world, but certainly with the general public. If that *is* the case, no matter how generic you think the term is and no matter how much you 'hate' Apple, it appears that they have a legitimate claim to trade marking the name "App Store", certainly as much as Microsoft do to the term "Windows" (USPTO REG. NOS. 2463526, 2559402, 2565965, 2463510, 2463509, 2212784, 1989386, 2005901, 1872264) and a few of those don't cover computer operating systems directly either.

"...remember: APPLE NEVER INVENTED ANYHING, NEVER EVER, NOT A SINGLE THING, NADA, NIL" Now, that's not entirely true, is it? Shouting about it doesn't make it any more of a fact either. Besides, it's not really relevant to the article.

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Jobs Horns

Rabid crapple, Batman!

I wonder whether JobsCo is under influence of HAARP?

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Double standards

I am the developer of Address Book Server which I market at www.addressbookserver.com. Address Book Server provides the ability to synchronise your contacts and events with your own server in a similar way to services offered by the jobsian cult. I however offered the service several years before it occurred to them, but this did not stop them from using the same name for their own offering in 10.6 Server.

The simple fact of the matter is that when it suits them they just walk all over anybody they can. Either they just take what they like (see Rendezvous now called Bonjour) or they send their army of lawyers after you. Either way if you don't have the resources of a large corporation you loose.

Either way, that is just they way our industry is these days.

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Gates Horns

Yeah... I still remember when...

I DO seem to recall Microsoft spending millions legally laying claim to the COMMON computer-term "Window". Wasn't that part of their... (still, ever ongoing)... war against "Linux"..?

"Lindows", at the time, wasn't it?

Well... You know Microsoft... steal what you can (Microsoft calls it "innovation")... slit it's throat in the cradle... if you can't (that's what they [Microsoft, and their rabid supporters] calls "competition").

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WTF?

Uhhh....

....a competitor released an operating system that was intended to provide a like-for-like user experience, and picked a name one character away from Microsoft's product's name. It doesn't take a rocket scientist to figure out that preventing the use of that specifically confusing term in the context of an intentionally similar operating system has absolutely nothing to do with 'laying claim to the computer term 'window'.

And, in case you weren't aware of it, your personal anger about Microsoft's innovation or lack thereof has absolutely zero bearing on the legitimacy of that particular trademark dispute.

Also, I think you will find that companies do, by nature, tend to involve themselves in still, ever, ongoing wars with their competitors. If you want to point out unfair business practices in the execution of that battle, then fine - but acting self-righteous because an operating system company is trying to sell its operating system at the expense of other operating system companies is utterly absurd. At least, unless you complain with moral outrage about Pepsi's still, ever, ongoing war against "Coke".

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No... Not, "rocket science"

One:

"Lindows" wasn't intended to be a "like for like"... competition to "MS-Windows". "Lindows" was a Linux distribution that provided compatibility with "off-the-shelf" "MS-Windows" software. It did this through integration of the Linux (Win)dows (e)mulator software... "Wine".

So... (L)inux which ran W(indows) software... hence, ("Lindows"). Get it..?

No, not "rocket science". And, "Lindows" was not trying to "dilute" Microsoft's product. The simple fact is that Microsoft clearly felt genuinely threatened by a Linux-distribution that was capable of breaking Microsoft's market LOCK-IN (by running "Windows" compatible software), so Microsoft's lawyers adopted the bogus "copyright" legal-argument that "...consumers would be confused by the Lindows name"... thinking that it [Lindows] was connected to Microsoft. That was the entire crux of Microsoft's copyright claim. However, in making that claim Microsoft basically had to claim ownership of the, long-used, and commonly-accepted, computer-term "Window". This was, even more preposterous because of Microsoft's long-standing approach to naming products, simply by prefacing the common application-name with the word, "Microsoft" (I.E. "Microsoft-word", "Microsoft-Calc", "Microsoft-Windows", etc.).

Two:

Microsoft isn't simply "competing". Microsoft has a long, and repeatedly-proven history of stealing other people's ideas, and technology, and of illegally leveraging their market-power to manipulate the market to "unfairly" destroy "competition"... to the direct detriment of consumers, and the industry. This has been absolutely proven, time, after time, after time... in court, after court, after court (in the United States, in South America, in Europe, and in Asia).

And, finally...

It really doesn't take a "rocket scientist" to quickly understand that continually (and, obsessively) thinking of business as a "war"... IS Microsoft's problem. Microsoft has taken this philosophy to a ludicrous extreme, where they literally act as if the entire computer-industry, and every consumer, is "...the enemy". And, THAT, extremist viewpoint... and the damage that it has already caused... along with the current danger that it, still, truly represents... is why I am expressing such "outrage".

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Fanboy much David W.

I see that you are really quick to defend their trademark of Windows. FYI they did hijack the term to confuse people into thinking 'MS Windows OS' was THE best or only GUI OS. The term Windows in computing had been used for over a decade, used to describe the 'window'. or framework, that let you graphically peek into a folder. You may claim rabidly that it doesn't apply because it involves the OS but I'm sorry it does apply because the term is used for COMPUTING, and last I checked the OS was part of computing.

MS hijack generic names quite regularly and trademark them. Word for example, for word processing, and to confuse people with regards to Word Perfect. They also took the generic name of SQL Server. What about Internet Explorer!! These are just three examples!!

As for Lindows I think you would find that Microsoft didn't win the case. In 2004 they paid off Lindows to the tune of $20 million to get them to change the name of the product. In fact Microsofts case was rejected first in 2002 and then again in 2004. They paid Lindows off in a bid to protect their trademark.

Their 2002 case was rejected because they (Microsoft) had used the term Windows to describe 'windowing systems' before MS Windows was released, and the windowing technique had already been in use by Xerox and Apple years before.

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FAIL

iApp store

should have called them iApps from the beginning.. iApp store goes better with iTunes store..

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MrT
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Thumb Up

And everyone else can use...

"Appl. Store"

Just don't forget the "." otherwise some people might get very confused...

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Gates Halo

Fonts

Let's hope MS uses a big enough font this time.

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And 'bookshelf' is ?

Microsoft gained the trademark on 'Bookshelf Computer' when it bought some small computer manufacturer that made a computer small enough to fit on a bookshelf.

It then sued others who dared use the term 'bookshelf' to refer to a shelf load of books digitised onto a CD.

http://www.highbeam.com/doc/1G1-156866494.html

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Clutching at straw man.

Does this, and all the many other, examples of alleged Microsoft hypocrisy mean that Apple ought to be allowed to trade mark 'app store'?

Or are they just irrelevant whining?

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Not to mention Amazon

So, it's OK for Apple to have to license Amazon's One-click "invention" but if Apple tries to do the reverse with "App store", it's considered somehow wrong or a farce?

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FAIL

Patent != Trademark

They are unrelated.

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hmmmm...

How is this any different to someone trying to trademark 'phone store' because they sell telephones?

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Troll

You mean logic should actually apply to Trademark laws?

Who would have thunk?

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It's a sign of how desperate Apple is. ???

"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 desperate Apple is."

It's a sign of how desperate Apple is. ???

This article and Microsoft's actions in the matter sound far more desperate to me.

It sounds like "App Store" is such a good name that Microsoft will do anything to stop Apple from getting the TM.

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Such a good name?

Don't you mean; such an obvious name? Guess that wouldn't serve your argument well though, would it?

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Stop

app store not a good trademark

“App store” is not a good trademark at all.

For one it is being correctly challenged as being generic. Microsoft and others are correct. This is true for windows too but in a different way.

Second, you have to defend any trademark you want to keep. And if you pick a generic one you will have to do a lot of expensive trademark legal work.

Generic trademarks do not make good trademarks at all.

It is fine if you have plenty of money I suppose. Perhaps you can spend enough of it to change the use of certain terms. But, I seriously doubt that any amount of money that Apple may want to spend is going to stop people from calling app stores “app stores”. What else do you expect people to call those places? It is an app store. A place where you buy apps.

Apple may think it is a monopoly and everyone must buy from it. But, that is not true. It may be true for some products and services. And if so, it will run into antitrust laws. It has already done so with its attempt to demand a 30% cut of subscriptions or the vendor will be blocked from Apple customers.

iTunes is very nearly a monopoly. And attempting to block alternative music subscriptions from Apple customers by demanding a very high 30% cut for doing nothing other than not blocking access to customers is very likely an antitrust violation.

It is also illegal to control the retail price of products sold through other channels in an attempt to avoid any and all price competition.

Maybe when Apple first thought of the app store name they thought it might make a good trademark. But, as it turns out, that thinking is wrong. It has become a truly generic term.

Strangely enough "AppStore" has a much better chance of becoming a protectable trademark. And I suppose that would really frost Apple a bit.

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Jobs Horns

Simple

Just call it an "App. Store". Surely the full stop should define "App" as an abbreviation of "Application" and Jobsworth can shut up, especially as he is claiming that "App" in their sense is an abbreviation of Apple. If anyone sees "App.", they'll instantly think of Application, not Apple.

I don't put an "Oran." or a "Bana." in my step-daughter's lunch for school, but she opens an App. to play a game on my phone...

I think that made sense - it's late...

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Grenade

Simple not

App. Store

You can't base a trade mark on punctuation.

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Flame

File vs Establish

Look at the list of app stores(tm)

http://en.wikipedia.org/wiki/List_of_digital_distribution_platforms_for_mobile_devices

Apple used the "App Store" nomeculature and filed the trademark before any of the competition started using that name, let alone existed.

But its fun to watch Microsoft's hyprocracy in this field.

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