Judge Says No One Is Confusing Apple's App Store and Amazon's Appstore | Hacker News Reader

Judge Says No One Is Confusing Apple's App Store and Amazon's Appstore

wired.com

71 pointsanigbrowl44 comments

If Apple is so worried, why didn't they name it the Apple Store? Honestly, some of this stuff is only designed for court cases. How about some real brand identity, like putting the Apple symbol on the iPad/iPhone button. Patenting ideas is just crazy. Here's an idea for the new Apple logo - a black rectangle. I'd recognize it...

To be fair, they already have an Apple Store: store.apple.com (it's marketed as "Apple Store"). Also, they do put a pretty prominent Apple logo on each device: notebooks with nothing but a glowing logo on the back, iPhones / iPads with a reflective metallic logo, heck, even the power chargers have an embossed logo on them.

I'm not sure whether Apple should be able to patent the name "App Store," but it certainly does raise a question of what a brand is. Surely, before the iPhone, people off the street would be confused by the term "App Store". Yet, after the iPhone (iOS >= 2), you could pull someone off the street and they would say something like "oh yeah, that's where you buy apps for the iPhone." So I don't think it's reasonable to dispute that Apple popularized the term "App Store," essentially invented it in the public eye. That said, it is a store to buy applications, which Apple did not invent, even in the public eye.

There are lots of terms / brands which encode the product in the name in a fairly obvious manner. Should American Airlines be allowed to use that as their brand? Or is it too generic, given that there are many airlines based in America? Should a brand like KitchenAid be able to patent their name? Or is it too obvious of a name, given that the company produces aids in the kitchen? Should uniqlo be able to patent the term heattech, or is it obvious given that it's a technology designed to preserve heat? It's a very difficult distinction to make, and I'm not sure which side is right.

Nitpick: these are all trademark issues, not patent issues.

Less of a nitpick: because these are trademark issues, the holders of the mark must attempt to defend them, or they are lost. While I happen to agree with the judge and feel that App Store is too generic to be upheld as a trademark (and agree with you about Apple Store, though mostly because most of the products there are made by Apple, unlike the App Store), I don't at all blame them for going after Amazon here - and I say that as an AMZN shareholder (AAPL too). It's probably in Amazon's best interest to rename simply because App Store is so firmly associated with iOS, never mind shutting up the lawyers and letting both companies focus on more important stuff.

Interestingly, the article mentions this was a suit over false advertising and copyright. I don't know if its wrong or our court system is that backwards, since that's very clearly not the actual issue at hand here. But then again, most of the Apple/Samsung battle should have been waged trademark grounds rather than patents too (analogy: knock-off handbag manufacturers are sued by the original designers under trademark laws too, which makes sense when you consider the concept of a trademark)

>, the holders of the mark must attempt to defend them, or they are lost.

OTOH, a pretty good way to lose them is to sue people and have the case go against you.

You're not saying anything. If you don't sue, you lose them by default.

I guess I'm saying you shouldn't apply for dubious trademarks.

See my comment on company names like Buffer and Stripe

Any law which fails to be clear needs to be rewritten so that the judge and his court can maintain their integrity as the arbiter of right and wrong. You can't punish wrongdoing if popular opinion is divided.

What do you think is a reasonable law, in this case?

No law at all, it would certainly be more exciting. More creative. More competitive.

This sounds good until you realize that "exciting" means that the "Coca-Cola" can you just bought has something else inside (maybe seawater), because they cannot defend the brand so everyone can use the name and the color to sell their own product.

Great - people would start drinking fruit juice instead :-)

Or seawater marketed as fruit juice.

> I'm not sure whether Apple should be able to patent the name "App Store,"

I don't mean to condescend, but please leave the discussion of IP issues to those that know what the hell they're blathering on about.

Where did patents come into play?

Nor would you confuse "App Store" if it was on Apple or if it was on Amazon. It's short for Application Store, which it always has been - whether Apple would admit that or not.

I don't think "Candy Store" was ever copyrightable ...

You're right, but just want to point out that it is typically trademarks that apply to names, not copyright.

When I first heard about java applets many years ago, I had an irresistible intuition that they were somehow related to Apple.

That's a rather poor argument as you present no reason justifying when a shortened name cannot be protected by trademark law. What about these Fortune 500 companies?

  Tech Data (short for technical data)
  Computer Sciences
  Waste Management
  Genuine Parts
  Health Net (short for health network)
  Applied Materials
  Whole Foods

... and so on? Those are all pretty generic names. Some are short for something else; others are self-descriptive. Which of those should not exist as a trademark and why?

All of them. If you start protecting words in the English language it requires us to expand the language thus diminishing it's usefulness in future. Personally I would say any word that is in a dictionary should not be possible for a trademarked name. Words that are added after the company for instance Skyping as a term for making a VOIP call or Kleenex as a term for tissue should be allowed to keep the name but as soon as it is entered in the dictionary all other companies should be forbidden to use it.

What about phrases?

If they contain English words I would say no. Otherwise we get into the same argument about similar phrases etc.

I wonder if the discussion changes if we use the same argument against HN-beloved companies, like Buffer or Stripe. A company named Stripe Processing that processes credit cards would be safe, as I'm referring to the "stripe" on every credit card, not a specific company.

Which dictionary? Who defines it? Who decides when Kleenex or App are to be included? Are words ever removed from that dictionary? What about foreign language dictionaries? What about foreign words transliterations to a different alphabet? What about made-up words that sound like an existing word with different spelling? Acronyms?

These questions are are pretty well answered by trademark law. Most of it boils down to a judge's decision, who, by the way, can decide that a hereforeto novel term has become generic (much as Xerox, Kleenex, and Photoshop are in danger of becoming), hence why you see ridiculous efforts by companies with household names to prevent verbification of their names.

I know, I was challenging the idea that it should not be allowed to trademark words in “the dictionary”. It’s a judge decision, there is no formal list of disallowed words, and my point is that there can’t be one, in the real world.

In danger of becoming? I'm not exactly sure why Kleenex or Frisbee are not already generic along with "coke" in the South.

Excellent question, it would be wonderful to have a world dictionary of words in usage with standards on how to add or remove words in a democratic way. For now an example would be to pick the 5 most used dictionaries in that language. I agree that it should include all languages, perhaps a database would need to be created of forbidden words that could be easily searched. I certainly haven't worked out all the details, but if it were implemented then these problems could be solved.

I think that is a very naive reasoning.

> If you start protecting words in the English language

Trademark law doesn't do this. Trademark law protects the use of certain words or phrases in the context of the goods or products they mark. The Feds won't come knocking on your door for naming your dog Kleenex.

Legally perhaps, but if I say Skype the product Skype comes to mind, that's fine, because their company name became a verb. In the other direction however if I take a word such as "Apple" and name my company that then I gain an advantage that any time anyone who speaks English eats an Apple my company name has the chance to come to mind. This restricts the English language by binding generic words through memory to companies thus diluting their usefulness.

> any time anyone who speaks English eats an Apple my company name has the chance to come to mind

I can't say this has ever happened to me.

IIRC, the test for non-trademarkability is not whether it's "generic" but whether it's descriptive. "App Store" perfectly describes what it labels -- it's a store where you can buy apps. "Whole Foods" on the other hand does not describe what it labels -- it's not a set of foods which are whole, it is a store which sells such things. The name "Whole Foods Store" on the other hand, would be non-trademarkable.

Does any one find it funny that Apple is more worried about a rival store selling android apps than Google is.

Android never used the word "App" in the name for their store. First it was "Android Market" and now it is "Play".

I think it is silly that Apple is attempting to "own" the word "App", but the fact that they went after Amazon and not Google has no larger meaning other than the fact that Amazon was using the term "app store" and Google wasn't.

I refer to all app stores in the generic form for this very reason. The more people that use the term generically, the quicker Apple will have it taken away.

Let's not think about patent/trademark issue for a second.

It's ludicrous why Amazon would name its store to something already similar. Whether or not Apple 'owns' the name, App Store, why would a huge company, with a clear brand, names its store that will only lead to customer confusion.

Are they trying to prove a point? Google's Google Play gives it a clear distinction, it even adds it's own name to the name. Why doesn't Amazon do this?

Short of trying to prove a point and sticking it to Apple, I don't see any merit for Amazon (not to mention it came after Apple's App Store) in naming its store Appstore. (or maybe they lack creative marketers to come up with a clever name?)

App Store = Application Store

Where do you draw the line? It's a shorthand word for "application". They named it "Appstore" because it is a place to buy applications. Every company that wants to should be able to have an Appstore or App Store, it's far too generic!

Of course, there is the odd point that I thought google play was mostly about games/music/movies for the longest time. In fact, I still think that. I thought there was another name for their application marketplace.

Regardless, as soon as the slang for the product became "apps" it is only a matter of time before people start having "app stores." At least, seems that way to me. And evidently a lot of others.

Amazon's Appstore : Apple's App Store :: Stein's Deli : Art's Delicatessen

Wal-mart/K-mart?

Dunkin' Donuts/Honey Dew Donuts?

I think the title is a little misleading. The article deals with the dismissal of the passing off claim which would be framed by Apple as a deliberate attempt by Amazon to pass off their own store as being related to Apple's.

I highly doubt that Apple's lawyers thought there was ever a chance that this claim would be successful but nevertheless, there is no harm in at least trying on ancillary claims, even for the purposes of acquiring leverage for settlement negotiations.

However, in any event, even in the absence of passing off, confusion could still arise as it doesn't require any deliberate intent as it is based on consumer perception rather than service provider intent.

I don't think there's any question here of the term 'App Store being distinctive in its own right. The question for the judge will be whether through usage of the term by Apple, it has acquired sufficient distinctiveness so that it serves as a unique identifier for Apple's store.

No, the judge is WRONG. Apple is RIGHT. I got confused when I visited wwww.amazon.com I thought it was the apple store and opened up my itunes in vain.

I also tried visiting store.apple.com and thought it was the Amazon's store, because it had the word 'store' in it. So, Amazon should sue Apple too...

Just one conclusion - Fuck apple anyway.

This ruling by the judge is disastrous. Do you have any idea how many Amazon Appstore apps I had purchased from my iPhone before I figured out the difference? I wasted sooooooo much money. None of them will even run on iOS!

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