Microsoft, Nokia, HTC fight Apple's 'App store' trademark Microsoft is joining a challenge to Apple's European trademark of Appstore and App Store. The software giant is joining with mobile firms HTC, Nokia and Sony Ericsson to challenge Apple's trademark in Europe. Amazon has filed a similar complaint. The companies want the trademark dismissed as too generic – which might seem a …
"and RISC OS3 was definitely not handheld software.
Try to keep in context next time."
Try to observe some arbitrary distinction so that a feeble apology can be made, eh? You're saying that wizard-level "oh so hard" desktop computing eschewed the technical term "software" in favour of "apps" back in 1989, but the consumer-level "easy as pie" mobile phone universe clung to the term "software" and never used any other term, or at least nothing like "application" or a shortening thereof? Laughable stuff.
The "context" you apparently need is a general acquaintance with goings-on in reality.
The OP said "mobile devices." RISC OS 3 was used on the Acorn A4, a small laptop released in 1992. Even if you find an excuse why the A4 doesn't count then the ART newsPAD from 1996 certainly does. It was a tablet computer, with 'pad' in the name. See http://acorn.chriswhy.co.uk/Computers/NC.html for a picture of the NewsPad, noting the icons on the bottom left.
In case this hasn't already been mentioned, OED has the first quotation for "app" dated July 1985. The word is, however, applied to an Apple product in that quotation: "One step in that direction is Apple's recent beta testing of the new programming tools called Mac App"
One has to chuckle a bit at Nokia. There they were, with phones with installable apps the best part of a decade before the Apple App Store arrived (even the monochrome 6310i could install java midlets, from what I remember). They could have taken the market by storm if they'd thought of the app store concept back then, or even when the 7650 came out (first proper smartphone).
The problem was that Nokia was so far up the mobile operator's asses that they couldn't see what people really wanted.
Mobile operators were full of themselves and wanted people to use their own crappy portals, to charge per app and even per byte used, and Nokia never did anything to counteract that.
Look at this Google Trends plot:
http://www.google.com/trends?q=app%2C+application%2C+app+store
See that yellow line for "app store". Now look at the date. Yes, that was just about when Apple launched iOS 2.0 with the App Store. Now is there any line before that?
QED
Now that it is a generic phrase that people can be expected to understand without qualification it is too late to trademark it.
Apple have even used 'app store' generically themselves. Conciously or unconciously conceding their own case.
QED or what?
Well first @AC Apple already trademarked it, so no it's not too late.
@sisk What do you mean it's too generic? Lots of trademarks are like this. For example Train and Tracker are perfectly generic, yet that didn't stop National Rail from trademarking TrainTracker.
Microsoft trademarking "Windows" is a bit cloudy and they've had lots of problems keeping it, but "App Store" looks pretty solid.
Genericness in the public mind is actually a valid test for a trademark, and as a test, it's not even based on when the trademark was used. There is no "prior art" type requirement in TM law, like their is in patent law.
TMs can be taken away if they fall into generic usage, this actually happened with Asperin, Freeware, Petrol, and Videotape. All of these where trademarks at one time, but fell into generic useage. Based on this, even *IF* Apple coined the term, AND there are not previous usages, if it is a generic term in the eyes of a lay-person, it can be taken away.
Both of those are huge "ifs"
The issue here is that "app" is a word that's been used as shorthand for a software application for years before the iPhone was released. "Store" is also a word that's been used in conjunction with another word to mean a shop for a specific product for many years. "App store" is no different from "shoe shop". It doesn't matter who popularises a term - copyright is about who invents a term.
However, the shorthand term for an Operating System isn't "windows", it's "OS". The only reason we associate the word "Windows" with an OS is because of Microsoft - after all, the GUI's windows is only one aspect of an operating system. Hence, MS has a valid argument for protecting the use of the word when it is applied to the name of an OS.
The mistake Apple made was in not coining their own term for a smartphone application so that they could take advantage of their early market dominance to build up an unconscious association between their own name and the generic provision of smartphone applications. They should have done something similar to Shuh, who have not copyrighted the word "shoe" but have effectively protected a word that is instantly synonymous with footwear. If Apple had simply gone with the "iApp Store" then there wouldn't be a problem.
There is a reason why Apple didn't use iApp store. What the competitors are accusing Apple of is that they're not trying to protect their intellectual property, but restrict the trade of other companies. Apple, they imply, know that if they can stop other companies referring to their own store as an "app store" they can inhibit the sales of their competitor's phones and tablets. This, they will claim in court, should be illegal and so the court should rule against Apple.
http://en.wikipedia.org/wiki/Java_applet
Apps Applets/Applications have been around since the 90s at the very least. Apple just did what no one else was bright enough to do and now they're winning, without anyone else getting a real look-in, everyone is bitching. If I were in Apples position I'd tell MS, Amazon, etc to stop being such a bunch of Whiney babies and get with the times. Amazon is less on my list of DINOSAURS when compared to the likes of Microsoft. But each of these companies lately has displayed a real lack of agility in the market. Something Apple has done with admirable success. Good on them... IF MS and the like can't be bothered to think of their own ideas they shouldn't be in the market... Can't wait to see what the Cloud situation brings, as apple already bought the webside iCloud.com
Maybe Ford could trademark the word 'car'. That'll help them corner the market.
Next thing you know, Apple will be suing garages for calling themselves Garages and non Apple users for having a thing call a 'life' (which sounds awfully like 'iLife').
The argument shouldn't be about whether Apple were the first to use the word 'App', that's bollocks for an argument because that suggests the first person ever to use a word has exclusive rights to that word (anyone sell Mobiles?).
The question is whether or not Apple SHOULD be able to own the trademark for 'App Store'. If the answer is yes, then also up for grabs are 'Computer shop', 'Car Showroom', 'Gas station' and 'The Pub'.
Of course people sometimes used "app" short for application, but there wasn't anything like a uniform app buying experience before Apple introduced their app store. The closest would have been the section in PC World selling boxed software titles (and it would have been called "Software", not "Apps") or a separate online store for each vendor.
And even if the words have generic meanings on their own, that doesn't mean that it can't be a trademark when combined, eg. "Carphone Warehouse" is a trademark, even though everyone had heard of both carphones and warehouses before they were formed. No one talked about "app stores" before Apple announced they were introducing one.
"Of course people sometimes used "app" short for application, but there wasn't anything like a uniform app buying experience before Apple introduced their app store."
That Lindows (oops, Linspire, due to Microsoft's illegitimate "ownership" of "Windows" and how Scooby Doo might pronounce it) service known as Click 'N' Run must have been a bad flashback, then. Oh wait, you (I don't mean you personally, but if the hat fits, please feel free to indulge us) are now supposed to tell us that you meant an "experience" for mobiles only, like mobile computing stuff is a completely different domain, and the bits and bytes in a mobile phone are all rodents made of exotic dark matter scurrying around and marrying each other for a special celebrity gossip magazine run by an impatient space pervert and only available in a completely different dimension, and thus has nothing to do with any other computer mankind or alien beings have ever made.
Anyway, I actually don't disagree with multi-word trademarks if they aren't themselves generic descriptions of things. Carphone Warehouse gets off the hook because even though mobile phones were probably more suited to automotive use once upon a time, the "warehouse" label is more of a retail positioning statement rather than a literal description of the retail outlets.
This post has been deleted by its author
If app store isn't the generic term for a store that sells apps, what is?
As for Windows, too wrongs don't make a right.
For all the people mentionining Linux - MS *lost* their initial case against Lindows, but then settled out of court to avoid the risk of losing altogether. If Apple want to bring a case against the use of Windows, then they should do so. Chances are, they would win.
But that doesn't given them the right to claim ownership too to parts of the English language.
"But Officer, everyone else was speeding too!"
(Also GatesFanbois makes a good point - whilst MS's trademark is dubious, at least they don't have the cheek to sue people who are using the term "Windows" in its generic computing sense.)
"They could have taken the market by storm if they'd thought of the app store concept back then"
Nokia _did_ take the market by storm - and still are the number one smartphone and phone company. Don't let the media obsession with Apple fool you. (Although yes, it's true - I bet they wish they had thought of the app store idea of palming 30% profit off of software developers. Personally as a developer, I wish no company had thought of this...)
"but there wasn't anything like a uniform app buying experience before Apple introduced their app store. ... or a separate online store for each vendor."
Wrong, there were all kinds of online stores (both free and commercial). And if you mean uniform - well, no, it's not uniform. There's still plenty of stores for each platform; and we have multiple "offical" app stores (Nokia's, Apple's, Google's, RIM's, MS's, etc)
"Mobile phone" was Nokia trademark from 1991 to 1995, if I recall correctly. But it became as generic term to err.... you probably guess: mobile phones -> Nokia lost the trademark rights for those two words. As "appstore" is generically used for describing net based service where you can buy applications, Apple's "app store" / "appstore" trademark should be revoked.
Actually this trademark should not been given to Apple in first place, as "app store" was generic term already in the time of submission of the trademark application.
I agree with you about becoming generic, but I think the phrase "mobile phone" wouldn't have been as generic at the time as it seems from the standpoint of the 21st century where everyone (in the UK) calls them that. For a start, prior to "Mobile Phone", any other common phrases of "Mobile X" meant "an X on wheels", not "an X carried with you".
And, on that subject, why not "hand phones"? After all, that's what Germans call them ("Handy"). Or, closer to home for me, the Irish for mobile phone ("fón póca") translates back to English as "pocket phone" - to me both of these are more likely names than "Mobile phone", and "Cell phone" is still the predominant form in the USA.
It's fascinating how names for new things arise - it's hard to pin down when exactly a thing became known by its common name. Unless you're in Iceland, of course - there, they have competitions to add new words to Icelandic to describe new things: a true Open Source language (take that, Java! :) )
Quite possibly it was Nokia's high profile when this market was new that provided people with the ready-made name "mobile phone". After all, "Sellotape" joined us this way: a new thing that needed a name, so it took on the brand name of its best-known maker (as did "Tesa" in Germany and "Scotch tape" in the US, for the same reasons).
Even now, you can see the name shifting from "mobile phone" or "mobile" to just being "phone", in the same way that "colour television" became "television", and "motor car" became simply "car".
An article on the beeb pointed me in the direction of app revenue figures for 2010 courtesey of the IHS screen digest organisation.
"IHS Screen Digest estimates that £1.1billion of revenue flowed through Apple's App store last year. Android Market managed just £62m. The figure was lower than both Blackberry App World (£100m) and Nokia's Ovi store (£64m). Research predicts massive improvements for Android by this time next year, but it is still expected to lag far behind iOS."
When your market share of app revenue is 4.8 times the sum of your competitors. You will be protective of your name.
Even if you look like a pedant doing so...
-------------------------------------
Beer as the whole thing is beginnig to look like a pub table arguement ... and i've the friday thirst...
$1, $1B, who cares? The question is if "app" is too generic to copyright. Which it is, to say nothing of the fact that they are trying to copyright a class of items, not a single item. It's like trying to copyright "fruit". They have their specific fruit, but cannot protest if Watermelon get a neat idea. I might advance a tenner to see them get into it with Orange for giggles though. NEXT!
FWIW and whether you like it or not...
There are "trade marks" and there are "registered trade marks".
If you can successfully register a trade mark you gain certain statutory rights. You generally can't register a trade mark that is not "distinctive", so generic words that are descriptive of your goods or services usually can't be registered as trade marks. However, an inherently non-distinctive trade mark can acquire distinctiveness through use, over time. You can register it if you can provide evidence that it has come to be strongly associated with your particular goods and services. This usually needs years of consistent use and substantial turnover figures.
You can apply the "TM" superscript to anything you use as a trade mark, whether it's distinctive or not, and over time you will acquire some common-law rights in the mark (as distinct from the statutory rights you get from registration). It's much harder to enforce such rights, but the "TM" discourages others from adopting similar marks.
M$ applied "TM" to WINDOWS for many years before they were able to register it successfully.
IMHO, Apple don't have enough use to have "acquired distinctiveness" in App Store, and the more that others use similar termionology in the meantime, the weaker their case will become.
There is no prior-art for copyright, it becomes yours when you register it - or even just through use. It's also surprisingly easy to lose.
Do you think McDonalds was the first store to be owned by anyone of that name? Finding a previous restaurant owned by a Mr McDonald does not change their copyright claim.
You can also get copyright purely by somebody associating something with your product - a sound, smell or (in europe) the way something moves. If people think appstore=apple in the same way that they think PC=windows then it's valid.
"There is no prior-art for copyright, it becomes yours when you register it - or even just through use. It's also surprisingly easy to lose."
We're talking about trademarks here, not copyright. Please slide down the snake to square one and roll the dice again.
wow... this post is almost completely wrong, and where is't not wrong, it's a non-sequitor.
Copyrights do not require registration. In every Berne-convention country, they exist at the time of creation (or something smiler, "committed to fixed media" is one such term). Registration only permits additional damages, and I'm not even sure that is true of all Berne-signatories.
McDonalds does not have a copyright on the name, they have a trademark. Finding anything does not change the copyright claim, because they don't have one.
And no, you cannot get a copyright because someone "associated something with your product." If you could, I'm fairly sure the estate of Phillip K Dick would be pretty pissed when they lose copyrights to "Do Androids Dream of Electric Sheep?" because of Google's OS.
In the US somebody associating something with your product, does not make a trademark either. You (as the maker of the product) have to create the association. If anyone making the association, think of the number of companies who would be vying for "Crap." To boot, the application of European law is in no way, shape, or form relevant. This is before a US court, between entities operating in the US. US courts don't really care about european law, and even if they did, they wouldn't be properly qualified to make any decisions about it.
Apple did brough the term "App Store" in volume to the world. The key point here is App is short for Application.
Now the problem is they should had file a patent for it back in 2008, not now. Thanks to Apple "App Store", the therm App is now used for application on a massive scale. Basiltly its too late to patent it.
Apple (and its army of fanboy/girl) is full of shit. I don't know about many old geeks here, I clearly remember around mid 90s, app was widely used as short of application software. The most used was "killer app". I'm sure app was already a publicly recognized term for "application" long before iPhone. "App store" is no different than "shoe warehouse" or "pet shop" in term of the usage.
Just about everyone I worked with in Apple called programs "Apps" or "Applications", especially the Cupertino people. It wasn't the first time I'd heard the term, of course (my old, old Atari ST, running Digital Research's GEM used both "prg" and "app" as a file extensions for applications software), but within Apple it was very much the preferred term for "program"
This, of course, cuts both ways - the fact that it was so widely used within the company, to the point that you'd be hard pressed to pin down a first use, is also a strong argument against any claim of originality.
The Register 
Biting the hand that feeds IT
Copyright. All rights reserved © 1998–2024
