March 25, 2011
This latest suit, directed at Amazon.com, is a trademark infringement claim regarding the “App Store.”
The details of the case are relatively straightforward.
In January 2011, Amazon.com started soliciting software developers to participate in a mobile software download service to be offered by Amazon in the future. Amazon used the term “appstore” in these solicitations, which Apple is claiming violates its trademark.
In all probability, Apple is correct, and here’s why.
Challenges to Apple’s trademark on “App Store” have been and will be on grounds that Apple is attempting to trademark a preexisting generic term, which is not allowable under the law.
The terms “app” (short for “application”) and “store” are currently in common usage and are generic, and thus wouldn’t qualify for trademark protection.
However, it was Apple who had a huge hand in “app’s” popularity.
While the terms “application” and “app” have been used for decades (thanks in no small part to Apple’s Macintosh Operating System), it has only applied to software on personal computers, not mobile devices.
It was Apple’s iPhone that popularized the term in the mobile field, most prominently with the marketing campaign slogan “There’s an app for that.”
In July 2008, Apple opened its “App Store,” and, at the time, it was the first and only usage of the term “App Store” in the marketplace. That same month, Apple registered for a trademark on the term “App Store” with the U.S. Patent and Trademark Office, which was subsequently approved.
Amazon will more than likely claim that the term “App Store” is generic and not subject to trademark protection. Normally, that would be a strong argument and Amazon would likely prevail.
However, the facts here seem to favor Apple.
Apple sent Amazon three cease-and-desist communications on the trademark, so Amazon must have known the mark was already protected, and that using it would be a trademark violation.
So even knowing this, why did Amazon stick with the name “appstore”?
Because the stakes are so high.
Mobile software download is an extremely lucrative market, with Apple, as its principal progenitor, holding the vast majority of the market. More importantly, though, its future growth is projected to be astronomical.
Moreover, while people predominantly associate “App Store” with Apple, it’s also been popularized as the major mobile software download marketplace.
Naturally, other mobile software vendors, such as Amazon, do not want Apple to have a monopoly on the mark, because they would like to trade on the “app store” name as well.
Instead of complying with any of Apple’s cease-and-desist letters, Amazon chose to litigate on the chance that it would prevail and slow Apple’s domination of the market.
The fight isn’t limited to Amazon.
Apple has sent cease-and-desist letters to other third-parties who have attempted to use the mark, and Microsoft is challenging the approval of the USPTO’s registration of the mark.
How these fights unfold will be central to the future of the mobile software market.
If Apple wins the war, it will cement its already firm supremacy in the market.