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Summary:

The Financial Times reports today that software publishing behemoth Microsoft has filed a motion with the U.S. Patent and Trademark Office this week, objecting to Apple being awarded the trademark “App Store.” But upon what ground does that claim really rest?

AppStore-featured

The Financial Times reports today that software publishing behemoth Microsoft has filed a motion with the U.S. Patent and Trademark Office this week, objecting to Apple being awarded the trademark “App Store.”

From the Financial Times;

Apple applied to have the term trademarked in 2008, shortly after it launched its App Store for the iPhone. However, in a motion filed with the U.S. Patent and Trademark Office this week, Microsoft points out that the term “app store” is used as a generic term by lots of companies to describe the online retail outlet used to sell mobile phone applications to consumers.

Microsoft lists other smartphone developers with App Store-like services (Research in Motion, Palm, Nokia, Samsung and, of course, Google) claiming that they all use the phrase “app store” in their marketing materials.

Microsoft trademark legal advisor Russell Pangborn said that the term “App Store” was no different to generic terms like “shoe store” or “toy store,” and that it was “…a generic term [that is] commonly used by companies, governments and individuals. The term “app store” should continue to be available for use by all without fear of reprisal by Apple.”

I don’t know about you, but as far as I can remember, “App Store” isn’t a phrase I ever heard, thought, said, wrote or read anywhere before it appeared for the iPhone. Since then, I’ve seen variations on the term appear elsewhere as alternatives to (and clones of) Apple’s App Store as they have launched on rival platforms — Google’s “Android Market” or Nokia’s “Ovi Store” and so on. In each case, I’ve always thought “Right then — that’s their version of the App Store,” and left it at that.

So what exactly is Microsoft trying to achieve here? They’re suggesting that, because the media at large refer to all these things as “app stores,” Apple shouldn’t be allowed ownership of the phrase. I can only see two reasons for being picky about this;

  1. Microsoft doesn’t trust its PR staff/agencies to avoid using the phrase “app store” in marketing materials (and thereby face the threat of legal action from Apple) or,
  2. Microsoft knows that, as far as customer perceptions go, “App Store” is a term synonymous with Apple’s high quality products and services, making it a valuable term in future marketing efforts. Or, put another way — “App Store” has some pretty glittery coat-tails that Microsoft wants to ride. After all, everyone has heard of the “App Store” — but who has heard of the “Marketplace”?

Granted, Microsoft had their Windows Mobile platform on sale for years before the iPhone was announced, for which third-party software was widely available. But Microsoft missed a trick — as they so often do — by not seeing an opportunity to streamline the process of app discovery, acquisition and updates. That Apple did have the foresight to make third-party application support an enjoyable experience was a breakthrough in the smartphone industry that Microsoft could have delivered first if they had only been more focused.

I’m glad they didn’t, mind you, or else a Microsoft app store would have been titled “Windows Mobile Universal Application Platform Services” or some other such unwieldy mouthful.

As far as I’m concerned, Apple should retain the trademark, since the Mac-maker deserves it. Apple did it first, and Apple did it best. Rather than wasting time and money fighting petty battles, Microsoft should instead concentrate on making their existing “Marketplace” such a compelling and easy-to-use service for Windows Phone 7 users that no one will even care if it’s referred to as an “app store” or not.

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  1. Moreover, as far as I remember, Microsoft doesn’t really use the term ‘app’, but rather ‘programs’.

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  2. Microsoft is right on this, sorry. It’s a very generic term. It’s not something unique and specific like say, “Windows.”

    Oh wait … :o

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    1. Now “App Store” is a very generic term thanks to millions of apps. But back before 2007 anybody could have grabbed it as a domain name. It was a unused and unknown term until Apple put it to work and everyone else followed them.

      The phrase “lead, follow, or get out of the way” by Thomas Paine sums it all up.

      Apple is the leader and MS and the rest are VERY distant followers that need to get out of the way.

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    2. Clever … except the trademark is for “Microsoft Windows” and Windows in this case doesn’t refer to the actual panes of glass in a frame, but … virtual windows on a virtual desktop … which is why it’s not a generic mark.

      Nice try though.

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  3. The very concept of an iPhone didn’t exist nearly a decade ago, when Danger implemented features like push email, multitasking, and an app store for the Hiptop, i.e. Sidekick.

    Guess who owns Danger these days?

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  4. This reminds me of how we all say Kleenex instead of facial tissue. Or the I say Coke with I’m referring to almost any type of soda. Should some competitor of Kleenex say they have to give up their name because a lot of people use it to refer to facial tissues and that all facial tissue manufacturers should be able to use the term? The term App Store was established by Apple. Just because we have all started using it as a common term to refer to a whole slew of mobile stores doesn’t mean they should have to give it up.

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  5. Apple didn’t exactly create the iPhone either. Cisco had that name for their product well before Apple did. So they’re not as innovative as you give them credit for. Do your homework next time. App store is generic.

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  6. Speedy Squirrel Wednesday, January 12, 2011

    On this I have to agree with Microsoft. Some names should never be trademarked. For Apple to trademark the name “App Store” – which really is a generic name – is very much like someone trademarking the name “motorcycle, or automobile”. In such a case, if a person name Joe later opened up a business called “Joe’s Motorcycle Shop”, he could get sued. In this case, and if Apple is granted such a trademark, technically, that means Apple could sue anyone who even used the name “App store” in any shape or fashion – even to describe their business. Therefore, it should NOT be allowed.

    Most people may not realize it, but current trademark law “already” has prohibitions against using names that are generic. Not only that, but trademark law also states that if a name that started out as unique ever “becomes” generic through usage, then you can loose all rights and exclusivity to such names. For an example of some “trademarked” names that has become generic: “Coke”,”Toilet Tissue”,”Crayons”, “xerox”, etc.

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    1. Actually, no…
      App store came from Apple’s 3 letter extension, .app, after applications in Mac OS X (and Symbian, NextStep for that matter). Microsoft called them programs and had the .exe extension for executables. Apple was the 1st company to start calling them “Apps”.
      And that is not even the question. Apple trademarked the term “App Store” when they were ready to open their store. No one else was using that term. Just because it seems obvious now does not make it obvious. It is hard for us to read tech blogs to get away from the idea that they were always called “apps” or that is generic – we are so enmeshed in it we don’t really see how for the majority of the population this concept gelled in peoples’ minds since the inception of the iPhone App store.
      Ever try to teach someone computers and realize that you need to start at concepts that are so obvious to you? Just because you know what apps are does not mean the rest of the world always did…

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  7. Steve Jobs would patent the world if the USPTO allowed it. This is the same thing Dell tried to do with cloud computing. As Cold Water notes, it’s two generic words tied together into a generic phrase. There’s no cause for allowing them to patent it, and just because Apple brought it to public consciousness doesn’t mean they actually did anything new or unique. If anything, a trademark should probably go to Microsoft if Danger was using it first.

    Now, should Apple get denied on grounds that it’s a generic term? Or should the trademark be granted to Microsoft based on prior use?

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    1. “Steve Jobs would patent the world if the USPTO allowed it”

      I think your thinking of that wonderful person that came out of MS called Paul Allen. And I’m guess he is working of patenting the World so he can sue us ALL.

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  8. This is from a company that’s main products are WINDOWS & WORD …

    BTW, the Newton Store was before any Danger sidekick store.

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    1. The trademarks are actually for “Microsoft Windows”, “Microsoft Word” and “Microsoft Office Word”. And none of those literally refer to glass panes in a frame, nor actual words on a paper, which is why they’re not generic marks.

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  9. Liam, before you make a claim like this, I encourage you to look at your Hoover. Wait, no, it’s a vacuum cleaner, which can’t be trademarked, because it’s a generic description of exactly what it does.

    Now if the name was “Apple App Store”, then you’d have a valid complaint. But it’s a generic description of what the store is – a place you can buy apps. It’s going to come down to whether “app” is sufficiently different from application to deserve trademarking, and if so, then App Store will piggy back off that trademark. However, because Apple itself has referred to programs on the Mac as apps – see “Featured Apps” on http://www.apple.com/macosx/what-is-macosx/ for instance – it’s going to have an uphill battle.

    Being the best is not enough to trademark it. Being first is. Sorry.

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  10. Apple had to trademark “App Store” since its a contraction of “Apple Store”. If Microsoft wins, how long before MS brings out their “limited edition” App store and call it the AppLE Store and try to confuse consumers?

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    1. And here I was, thinking all along, that it was a contraction of “Applications Store”

      Which is what I still believe it is, considering that’s what they are selling, and bet they would have liked to follow the iTunes Store convention by naming it the “iApp Store”, but that would be a bag of hurt

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