I SAY APP STORE YOU SAY APPSTORE! APP STORE!

By: Rene Dial

Is App Store a generic term?

Apple filed for the “App Store” trademark on July 17, 2008.  Sage Networks filed for a trademark to use the term “Appstore” in August 26, 1998 “providing computer software application hosting services by means of a global computer information network” but was abandoned in November of 2000.

Sage Networks is not in a fight with Apple.  I was just surprised to find an “Appstore” that predated Apple’s App Store.  If you take Apple’s word for it.  A quick search of the USPTO’s database found a number of businesses using the term Appstore by adding various names before it such as Rene’s Appstore.  Apple’s app store is not called Apple’s App Store it is just App Store.  In my mind it is kind of like using the term grocery store.  The only way to distinguish it is to call it by the name of the company that owns it.  For instance Publix’s Grocery Store or Winn Dixie’s Grocery Store.

According to a letter I found on TNW.com Apple is going after a small start up company called Amahi over their use of the name App Store on Amahi’s website.  Click here for a link to the letter found on TNW.  I can only imagine how many companies are out there using some variation of app store and I can only imagine how much money Apple is willing to spend to defend the mark.  Small start ups typically do not have the capital to take on these giants.  It usualy takes a titan to fight a titan.

Here comes our second titan to the ring, Amazon!  Now we finally get to see how much money and time Apple is willing to spend.  An Article on Bloomberg.com  says that Apple is currently in a court battle with Amazon for trademark infringement and to prevent Amazon’s registration of “appstore.”  According to the article it seems as though the judge in this case is set to deny Apple’s motion as they have not demonstrated real evidence of confusion.  Okay how many “app store/appstore(s)” can there be.  Are these companies really distinguishing their goods and services? 

Okay now for a little trademark 101.

According to the USPTO “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”  Now when I say app store/appstore do you automatically think Apple?  Is Apple the only company that has an app store/appstore?  What draws the distinction of one app from another app?  Does Apple’s App Store distinguish Apple’s apps “of one party from those of others.”

I have a DVR that plays Netflix, news articles, Facebook and many other “apps.”  Apple does not come to mind when I click on an icon.  I do not think of Apple when my brother in law shows me the apps on his Droid smart phone.  If he shows me the Droid “app store” I do not think of Apple.  The only thing that distinguishes Apple’s apps from the other guys is that Apple’s apps are on Apple’s products.  I cannot buy a Droid app to place on an Iphone or an Iphone App to place on a Droid!  So how is the consumer going to confuse the “store” that their apps were purchased from.

According to (15 U.S.C. §1052) Section 2(e) of the Lanham Act states “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it–… (e) Consists of a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them…”  Is “app store/appstore” merely descriptive?

You be the judge.