Apple, Amazon trademark spat turns surreal 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 …
It's a store where apps are sold, and "App Store" is a unique name that could just as well have been "Program Shop" or "Software Seller" or "Petunia" or "Honeycomb" or "Bloward's".
It's just like "Kleenex" and "Velcro". Those are not generic terms; they refer to specific trademarked brand names.
The same arguments were made for "Aspirin" and "Band-Aid". However, because of the force of popular usage, both terms were found NOT to be exclusive to any single entity. So today you have many makers of Aspirin and Band-Aids. More often than not you do see "Plastic first aid strips" or some such. But that was to distance themselves from the original maker of "Band-Aids" for marketing reason. There are many instances of non Bayer Aspirin.
"App Store" will never be limited to The Sacred J's usage alone and he knows it. But he can't give up without a "good" fight. The faithful demand it because after all, they are the faithful however misguided they might be.
I don't identify with 'Band Aid', maybe it is a US brand. It reminds me of the unshaven musician guy. Elastoplast sticks in my memory, so I just rooted about and found 'Fast Aid assorted plasters' - quite catchy, and Porous wound dressings. Seems like I've been down the Pound Shop(TM). I also have Clotrimazole cream, at 1/4 of the price of Canestan, but not so catchy. Ok, I'll try to be serious next time.
I don't know which side of the pond Band-Aid originated, but I'm pretty sure that the unshaven musician guy was aware of the pun in "Band Aid" and he's East-Pondian.
Perhaps he and I are just older than you. The UK market these days is dominated by own-brand stuff and child-friendly things like "Mr Happy".
Before Bayer invented their synthetic willow bark, "aspirin" didn't exist as a word, so that is a slightly different case. The full explanation of how it became a generic word in Europe would involve invoking Goodwin's law, so I won't.
I can't comment on Band-Aid. In the UK, we call them plasters, and I'm not even sure that Band-Aid branded plasters are available for sale here. Certainly the Superdrug and Boots websites don't come up with anything, nor does mysupermarket. Those are the places most people would shop for such things.
App Store is a much weaker case than Aspirin. It might be similar to Portakabin which is vigorously defended by its owners.
I suppose Steve could argue that App stands for Apple rather than Application.
if App Store was a unique name, but it isn't. an App is a generic term for an application, Store is a generic term for where you buy things. therefore App Store is a generic term for a place you can buy applications.
If "kleenex" was called "tissue" you may have a point, but you don't.
If Velcro (think apple) had called their product "sticky plastic" instead and others called theirs "sitcky plastic" then it would have been the same sort of thing.
apple then say "sticky plastic"(TM) is not the same as "sticky plastic" i.e. plastic that is sticky. And that their "sticky plastic"(TM) should supercede other "sticky plastic".
Lunacy.
I agree with the core of your point but you shot yourself in the foot by choosing Velco. Velcr does indeed stand for Velours Crochet (velvet hook in French), so is close to app store -although abbreviated enough to be specific, I think. Not so much for app store)... shame, as all the other examples would have been fine for your argument!
The way I understood it Spam is a form of processed meat from the US.
It was popularised in the UK (and possibly EU) by Monty Python.
There was no way manufacturers Hormel could (or would) have done anything about the Monty Python sketch, it boosted sales and was in no way derogatory.
Then as a result of the Monty Python sketch where it's repetition is the humour the word was carried into another realm as a description for (repetitive) junk email.
Hornel at some point tried to assert the trademark over companies selling anti-junk email software and using the word spam in their marketing.
They quite rightly failed because the word had become generic in the context of junk email, that and it was not competing in the same industry (food vs software) and it was not adversely affecting Hornel and the sales of Spam.
Hornel were very lucky to have had their product popularised in such a way and even with the use of the word in a separate context I'd say that as a result there will be a continued demand for the SPAM (TM) foodstuff as produced by Hornel, not many companies will be so lucky and in my opinion the attempted Trademark assertion over various software companies was pure folly.
Back to the topic.
When I read this story the only thought I could muster was WTF? Just WTF?
DISCLAIMER DISCLAIMER DISCLAIMER DISCLAIMER DISCLAIMER
THIS POST DOES NOT IN ANY WAY SHAPE OR FORM EXPRESSLY IMPLIED OR OTHERWISE IN ANY SORT OF FASHION WHATSOEVER THAT MAY OR MAY NOT BE CURRENTLY INTERPRETED BY THE READER OR READERS AGREE SUPPORT DEFEND OR OTHERWISE APPROVE OF THE ACTIONS ACTIVITIES STATEMENTS POSITIONS OR LEGAL ACTIONS OF APPLE COMPUTER INC OR ITS SUBSIDIARIES OR DESIGNATED AGENTS
I'm not saying I agree with the reasoning. I'm explaining it. Get the picture?
DISCLAIMER DISCLAIMER DISCLAIMER DISCLAIMER DISCLAIMER
THIS POST DOES NOT IN ANY WAY SHAPE OR FORM EXPRESSLY IMPLIED OR OTHERWISE IN ANY SORT OF FASHION WHATSOEVER THAT MAY OR MAY NOT BE CURRENTLY INTERPRETED BY THE READER OR READERS AGREE SUPPORT DEFEND OR OTHERWISE APPROVE OF THE ACTIONS ACTIVITIES STATEMENTS POSITIONS OR LEGAL ACTIONS OF APPLE COMPUTER INC OR ITS SUBSIDIARIES OR DESIGNATED AGENTS
The lawyers do their best for the clients, even if it is madness. Therein is the difference. They didn't start it, and are part of the system, like soldiers, etc. I won't downvote you for the title, though. After reading some of the learned posts on here, I can see the fun + money in the whole thing
There's the difference.
The law was originally made by 'normal people' (where normal was defined as 'have big armies'), and it was then hijacked by specialists who have continued to make it more and more complex in an apparent attempt to ensure that the law can only be understood by those specific specialists.
Lawyers are only needed because lawyers have made the law too complex for anybody else to understand, mostly written in incomprehensible language.
Soldiers didn't do either of those things.
> The lawyers do their best for the clients, even if it is madness
And therein lies the problem.
The lawyers are Officers of the Court. Their first duty is to the law, their second to their clients.
If they are spouting total bollocks, they are deficient in that duty, and risk sanctions. Sadly, such sanctions rarely materialise.
Both the US and the UK legal systems rely entirely on the lawyers not being total lying wankers. And there is a reason why courts sometimes go awry...
Vic.
No, it's not meant as a factual statement as such. It is a statement of Apple's denial of an allegation from Amazon's pleadings. If Apple didn't deny that allegation explicitly it would be deemed to be accepted, and Apple's lawyers would be verging on negligent. This quote is taken from a legal document and meant to be read in conjunction with the other documents filed at court as part of that case. It's not meant to be used as a sound bite.
When will people realise that a name only means something when people generally accept it as a set term. Windows simply means windows and if MS want to put windows on screen then they are windows - they have no monopoly on windows. Windows as an OS is simply a term meaning the OS based on windows (hence their failure to understand the 'desktop' metaphor!) - it can only be 'owned' in that context, so MS can't sue me for painting MY windows.
A real term needs at least two words to narrow down its possible meanings: but a drugstore only becomes what it is by people accepting the "usual" meaning of the term and not a place to buy drugs. Equally I don't expect to get my computer hardware from a "hardware store".
The term produced by putting the word "app" next to "store" was introduced by Apple, and most Apple users accepted it as a term for the App Store. If others want to come along and use it like MS did with the word "windows", then they would have to have produced something novel that is accepted as such before Apple coined the term and applied to copyright it.
Generic words can always acquire specific meanings in a given context and there is no problem in their being copyrighted for that context alone. We can talk freely about app stores if we like, but Apple have every right to talk about THE App Store for a specific form of acquiring apps and copyrighting the term for that function.
To mix this issue up with the ridiculous patent trolling situation that the US has plunged itself into is just a "red herring" (my apologies to any specific red herrings reading this who are not the usual silvery edible kind and dislike being mistaken for misguided arguments).
Correct.
At least if you still apply the old meaning of the word.
http://en.wikipedia.org/wiki/Drug#Etymology
And yes, they have expanded beyond the traditional business.
On the other hand you also get "apps" from an "app store" to buy books etc..
Evolution seems to be faster in IT.
Er... yes. Isn't that their primary purpose? Don't the ones where you live sell drugs? I know nowadays the look more like over-sized convenience stores, and you have to dig to find the pharmacy area, but they still sell drugs somewhere in there. It's the (depending on context) legal ones, of course, but still drugs. Ask your friendly neighborhood druggist.
"So a 'drugstore" sells drugs according to this logic??"
Um, yes. Drug stores sell drugs. This is why we call them drug stores (those of us in North America, anyway; those in the UK would call them 'pharmacies', but never mind), and why we go there to buy drugs and fill prescriptions for drugs. I'm not quite sure what you're arguing here. Are you making the common mistake of equating the term 'drugs' with 'illegal drugs'? Aspirin's a drug, antihistamines are drugs, Viagra's a drug, all those pills you get at drug stores are indeed drugs. And indeed no-one could get a trademark on the term 'drug store' as it is a generic term for a store which sells drugs.
"Generic words can always acquire specific meanings in a given context and there is no problem in their being copyrighted for that context alone."
Indeed, but in this case the context has to be different from the generic meaning. 'Windows' is actually an excellent case in point: Microsoft only has a trademark on Windows as the term is used to describe a computer interface. It doesn't have a trademark on the generic meaning of 'windows' as 'holes in walls that you can see through', and if it had applied for one, it wouldn't have got it, because you can't trademark the commonly-accepted meaning of a pre-existing word. One company that sells windows can't apply for a trademark on the word 'windows' and preclude its competitors from calling their products 'windows'. The Microsoft patent on 'windows' relies on the term 'windows' not having been used as a generic term for an operating system / computer interface before Microsoft applied for their trademark.
And by what logic would a drugstore be expected to sell fish?
"A real term needs at least two words to narrow down its possible meanings:"
And with that shot to the foot, I'm guessing you would have never given the mark "Applestore" to Apple. Frankly I concur it should have never been given, but as one word it is more distinguishable and less generic; that said I would expect Granny Smith and Braeburn to be prominent products instead of all Macintosh all the time; certainly the Burchinal Red Delicious would never make an appearance. Perhaps it should have been macintosh-store or macstore (not to be confused with maxtor) would have been better.
Hmm... App Monger... Back off! that TM is mine!
Here in the UK our high streets are polluted by a chain store called "Superdrug", which sells no drugs at all [1]. Shampoo and cosmetics, yes. pain relief or prescription drugs, no.
Since we have grown used to the mendacious ways of marketing people, no-one much cared.
[1] I believe some free-lance use of the doorways in the evening may restore grammatical accuracy. Allegedly.
I have questions about that; were grocers banned from going to school?
Were they the only ones allowed to put in superfluous apostrophes?
Is it becoming more prevalent because of the large numbers not going to school, or going there and not learning?
Next your be tell me I dont speek proper neither.
Is that the place you go to get a dent removed from you auto fender? or The Body Shop, the store that sells stinky stuff?
The Body Shop has a trademark that applies to stores selling stinky stuff (no bodies), but not to the generic term used by places that fix car bodies (www.arborbodyshop.com for example).
"Apple denies that, based on their common meaning, the words 'app store' together denote a store for apps,"
Right, so we better all get it out of our heads that a drug store is a store for drugs
, and ... ... ???
OK, glad that's settled and perfectly understood. By Apple at least, but probably not by any other intelligent being.
Market is taken too: https://market.android.com/ :-)
"Apple started the app craze" is probably a good way of putting, in that they started the current frenzy for small applications on mobile phones. However in no way did they start mobile phone applications - they've existed for many years on Symbian, in Java midlets, and so on. And the term app(lication) is as old as personal computers.
I have the feeling that the same arguments occur every single time this topic is raised on the Reg. Could someone please codify them so that we can refer to them as AppArgument #1 etc? You could even write an app to do it!
I can remember "app" sections in computer software ads nearly 30 years ago. As opposed to "games", and "utils".
If I still had my old ZX81 boxes of cassette tapes that were sorted in a selection of shoe boxes, you would see the boxes labelled Apps, Games Utils.
It was also commonly used in small ads at the back of computer magazines, because you were paying per letter, and abbreviating them was cheaper.
Paris, due to her attempts to trademark a common phrase..
The Harry's of this world obviously don't understand English or logic ...
<<Right, so we better all get it out of our heads that a drug store is a store for drugs
, and ... ... ???>> asks Harry ...
... ... SO think it through carefully: a drugstore is no more a store for generic drugs than the App Store is a store for generic apps - ERGO, it is a store for Apple apps and that is what Apple is trying to get into a lot of generic PC minds who want to have generic stores.
Windows with a capital letter is their copyrighted computer OS and and the App Store with capitals is Apple's copyrighted Application store. So you can all go off and buy apps at your app stores, but you won't get Android apps at the App Store, just as you won't get an adobe mud hut from Adobe or a foster child from Foster's or the next best thing from Next. There are thousands of generic words used for specific copyrighted products, so the only thing that is stopping you from accepting Apple's rights to a term has to be pure enmity.
Give your lack of English understanding a rest, please, trolls ...
. . . except for the many ways in which you're wrong.
"a drugstore is no more a store for generic drugs than the App Store is a store for generic apps"
The point is that a drugstore is a generic *term* for a store where you buy drugs (or at least that's how it started). At this point, if someone tried to trademark the word "drugstore," they would hopefully be laughed out of court.
"the App Store with capitals is Apple's copyrighted Application store"
If you RTFA, you'll see that Apple is explicitly fighting the words "app store" used in conjunction, i.e., they are denying that those two common nouns placed together form a common phrase but rather a proper one which they can trademark.
"Give your lack of English understanding a rest, please, trolls ..."
Back at ya there, skippy.
one, you're confusing copyright and trademark, two entirely different areas of law.
two, the difference between this case and your precedents is that none of those trademarked the commonly-accepted generic definition of the term. Microsoft do not have a trademark on the word 'windows' as used to describe 'holes in walls that you look through', they have a trademark on the word 'windows' as used to describe a computer operating system. Adobe do not have a trademark on the word 'adobe' in the context of a building material, they have a trademark on the word 'adobe' in the context of computer software. And so on. You can trademark the use of a word with a commonly-accepted generic meaning in a *different* context, as long as no-one else has trademarked it before and it's not in common use in that other context as well. No-one else was referring to operating systems as 'Windows' before Microsoft called theirs that, and no-one else was using the word 'Adobe' in the context of computer software before Adobe started up.
The problem Apple has is that 'app' was in common use as a contraction of the word 'application' to refer to, well, an application long before Apple started using it that way, and it's difficult to argue that you can stick the equally generic word 'store' behind any generic term used to describe a product and then claim a trademark on the combination of the two commonly-used, generic terms in their commonly-used, generic meanings - i.e. (yes) 'drug store', 'paint store', 'guitar store', and so on and so forth. Apple would be on much more solid ground if the term 'app' had _not_ been in widespread generic use beforehand and they could just have trademarked that; unfortunately, for them, it was and they can't.
You should really get at least a vague understanding of what the hell you're talking about before you open your trap.
Where all the money goes when you pay over the odds for a piece of hardware.
"Apple denies that, based on their common meaning, the words 'app store' together denote a store for apps"
If I were the judge and a lawyer said that to me, I would jail the fuckwit for stupidity, wasting the courts time and polluting the gene pool.
but then saw it's Amazon doing the complaining, and their store developer terms are the most greedy and draconian in the planet (e.g. they may pay up no more than 25% of the sale price you set)
App store is definitely wrong for them, hopefully they'll be forced to take on the real description which is App Pimps
> but then saw it's Amazon doing the complaining
That shouldn't matter.
What's important is that the law is applied correctly. Whether or not we like the plaintiff/defendant is irrelevant; it is essential that the law is applied equally, even to fuckwits.
To do otherwise is to grant certain entities an exemption from the law, on account of their being (currently) popular. Now I'm not saying that doesn't happen, but it is a very Bad Thing(tm).
Vic.
I am soooo glad that in this mad, sad, glad world we live it, that considerable resources are being squandered on such mundane and trivial issues.
and "the public and politicians" raise a fuss over "frivilous lawsuits" brought by individuals against corporations, while corporations are using even more resources to sue each other over this type of tripe.
Perhaps we would have more rational ways to solve these types of issues if, in these types of disputes, the losing CEO and legal team would be publicly castrated, and all stored genetic material produced by them obliterated.
> the losing CEO and legal team would be publicly castrated
More effective would be if the legal team that proposed such nonsense were properly sanctioned, as the law permits.
That way, the next bunch wouldn't be quite as keen to propose such utter bullshit, as it would have a personal cost to them to do so.
Sadly, judges rarely impose such sanctions. And that is the problem.
Vic.
". "Apple denies that, based on their common meaning, the words 'app store' together denote a store for apps,"
No Steve, your right, when I see the words "app store" I immediately think of a garage for badgers.
How anyone could think App Store would be a store to buy apps is beyond me, or any of my other personalities.
Can we get the number of the lawyers dealer, that guy is selling some seriously good shit.
So THAT is where all the cheese from the Monte Python sketch went! And Wallace and Gromit were looking for it on the moon, excellent. "An apple pie without some cheese..." we should have figured it out ha ha steve jobs nice joke now give us our money back.
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."
And...
"Apple denies that, based on their common meaning, the words 'app store' together denote a store for apps,"
-------------------------------------------------
The term is 'doublethink'
"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it... Even to understand the word 'doublethink' involved the use of doublethink." From the diary of Winston Smith.
"The problem Apple has is that 'app' was in common use as a contraction of the word 'application' to refer to, well, an application long before Apple started using it that way,"
I have disks that have had the word apps writtern on them from the mid 80s, guess what type of software is on them?
This whole thing falls flat on its face...
On the phone you have two apps:-
"App Store"
"iTunes"
This is a clear definition of 2 separate stores, one for songs, etc. The other one purely for applications.
By there own admission the quote goes "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'.", this seems to be a open statement and agreement that the term APP STORE is generic, which is now being retracted as it doesn't fall into what they want to do now.
The trademark should not have been permitted in the first place in my opinion.
You are missing the context.
Boots (foot ware) != boots the pharmacy.
I think that you'll find it difficult to open a pharmacy called boots, however you are still free to sell boots in your shoe shop.
If your making your argument in support of apple I think that you'd do well to remember that there are green spherical objects which predate the companies trademark but are unnafected by their trademark on the word.
The capitalization isn't what allowed it to be trademarked, it was because it wasn't in the footwear and fashion sector but rather in the pharmaceutical sector---Boots has as much to do with footwear as Apple has to do with fruits. i.e., it should bear resemblance as to what it sells:
http://www.thetrademarkassociation.org.uk/faq/
The only reason why I watch this kind of dispute is to see how megalomaniac a man can get. He is worse than Napoleon, Hitler and the rest of the mean little men team. He really believes he can do anything.
Ans the fanbois still think he is right....that is the worst part.
RE:David Barrett and BrownishMonstr
I was simply stating that in the context of this thread I thought that comment about boot was quite funny.
If you care to read the comments other people have left, you will pick up on the number making reference to capitalisation, generic products and terms. In the grand scheme of things, that comment was funny.
However, it looses the humour somewhat when it has to be explained.
BTW, I don't think the Boot family would have had many problems with the local footwear emporiums kicking about in the late 1800s.
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