Is ‘App Store’ a Generic Term? A Question for the Courts

The VAR Guy is taking an interest as Apple and Microsoft go at it in their latest courtroom battle. Apple is looking to defend its trademark of the term “App Store,” while Microsoft claims it’s a generic term and cannot be protected. But Apple has made moves to ensure its App Store doesn’t become generic by putting the (still-disputed) screws to Amazon’s own app store. So what’s the deal? Here’s what The VAR Guy thinks…

It might surprise you that The VAR Guy is on the fence with Microsoft’s argument. On one hand, Apple has been the catalyst for putting the phrase into the public consciousness; on the other, The VAR Guy is having a hard time not agreeing it’s a generic term. However, Apple certainly has a leg to stand on — Google has used the “Android Marketplace” moniker while Intel has gone with “AppUp.” webOS goes by the “App Catalog” name, and even Microsoft uses “Windows Phone 7 Marketplace” (despite its objection to Apple’s trademark application). Big-name companies have (smartly?) shied away from dubbing anything the “App Store.”

Amazon, meanwhile defiantly ignored Apple, but uses the term “Appstore” instead of “App Store.” That small differentiation isn’t enough to satisfy Apple, however.

Yet, despite the myriad vendor names for what is essentially the same service, The VAR Guy thinks Apple will have difficulty proving the term is non-generic. Simply do a search for “Android Marketplace” and you’ll find a number of sites using the term “Android app store.” Same goes for all the previously mentioned vendors. In fact, Microsoft’s initial complaint points out that despite the different names, the underlying “press descriptor” is still “app store.” Microsoft isn’t wrong.

Apple, however, has reminded every party involved here that “Windows” could just as easily become a generic term. It is, after all, just a noun. Unfortunately, The VAR Guy doesn’t think that argument holds any water, since “Windows” is a type of OS and “App Store” is, well, an app store.

Both Microsoft and Apple are pulling out all the stops to prove or disprove the “generic” theory. According to CNET, Apple hired a linguist to prove the term wasn’t generic, and Microsoft countered with its own linguist offering a contrary interpretation. This, of course, occurred after Microsoft argued that Apple’s defense letter to the U.S. Patent Office was printed with the font size too small, resulting in …

Apple … manipulating the text to squeeze in more of its arguments against Microsoft’s opposition to the trademark application.

You can’t make this stuff up, folks. The VAR Guy thinks Apple has every right to try and defend what it sees as its trademark, but this blogger thinks the company will have to go to great lengths to prove it. Meanwhile, our resident blogger will continue to log on to his mobile OS’s app store and hope he doesn’t get sued by Apple for using the term in this post.

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