Thursday, January 13, 2011

how distinctive is app store?

Microsoft is arguing that Apple cannot trademark the term app store because it is a generic term.

"An 'app store' is an 'app store'," Russell Pangborn, Microsoft's associate general counsel, said, according to the BBC. "Like 'shoe store' or 'toy store', it is a generic term that is commonly used by companies, governments and individuals that offer apps."

A commenter at Hacker News begs to differ:

Ngram data shows no usage of "App Store" or "app store" from the time of 1800 to 2008. I was suspicious of this, but using the terms "app,store" separately produced lots of data points. My tentative hypothesis is that Ngram is using data that existed before the App Store went public and thus will not show up in Ngram.

I'm no trademark expert, but the basic idea, as Wikipedia defines it, is distinctivenessA trademark may be eligible for registration, or registrable, if amongst other things it performs the essential trademark function, and has distinctive character. Registrability can be understood as a continuum, with "inherently distinctive" marks at one end, "generic" and "descriptive" marks with no distinctive character at the other end, and "suggestive" and "arbitrary" marks lying between these two points.

First, I used BYU's Corpus of Contemporary American English and found an instance in 2009 of 'app store" being used to describe Zune's product: Oh, the Zune has an app store, all right. As of today, there are exactly nine programs in the Zune App Store.

A quick google search reveals that it commonly gets applied to non-Apple related products as well: Yep, Amazon Launching Their Own App Store For Android Too.

While it may be the case that Apple introduced the term in 2008, it seems to have expanded to generic use in less than a year and now gets used at least semi-regularly for non-Apple products. I'm not an Apple user myself and my own reading of app store is definitely generic. It does not distinctly mean Apple's product at all, to me. I have no clue if a court would agree.


bulbul said...

I was going to comment, but then I decided to make a blogpost out of it, so, um, for your consideration:

Chris said...

works for me, that's the glory of the blogosphere ;)

Jenny said...

Out of curiosity I ran an OEC query on "app store" and it agrees with your queries in that there is hardly anything before 2008. But even in the very few 2007 results it always appears with a qualifier, "The iPhone app store" and "The Apple app store". Except for the single "Microsoft is introducing an app store copycat".

Since then it usually appears with a qualifier, "the Apple app store", "the iPhone app store" or "the iTunes app store" and other qualifiers featuring Microsoft, Google, Palm and Symbian products.

Surely if an app store needs a qualifier to identify its vendor, "app store" has to be a generic term.

Chris said...

John, this is an good point. If app store is distinctly refering to Apple, why add Apple, not sure how trademark courts use that info.

bulbul said...

Out of curiosity, John, how many references to Microsoft Windows would you find as opposed to just "Windows"? Surely if it needs a qualifier etc. etc. etc.

Jenny said...

@bulbul I suspect you might have answered your question by capitalising the "W" on "Windows". An Apple Mac can have windows aplenty but it can't have Windows.

bulbul said...

a good point, except
a) The name of the Apple "App Store" is capitalized.
b) In the USPTO database, both registered Windows trademark as well as the applied-for App Store service mark are given in all caps. What exactly that means, I'm not sure, but it looks to me like the capitalization situation is the same for both trademarks.
This would be supported by the paperwork filed by Microsoft, where they consistently refer to "App Store".

Licia said...

As I mentioned in a comment in bulbul's blog, the exhibits brought forward in Microsoft's motion make for some interesting reading.

I don't know much about trademarks, but from a terminological point of view, it looks to me as if Microsoft's lawyers are trying to prove that app and store cannot be regarded as semantic neologisms because their meaning is already documented by several dictionaries (cf Trademark distinctiveness - Arbitrary marks), and as result also app store has become a generic word lacking distinctive character.

kami said...

What do you think about the concerns mentioned in this post:

Mohan Arun said...

Microsoft is right. You cannot trademark a term as generic as "App store" unless it is a slogan, tagline, etc. In fact, one company should be allowed to trademark only one logo and one slogan to go with it. Apple already has "Think different" as its main tagline so it shouldnt have been allowed to trademark "There's an app for that" in the first place. And now THIS "App store" thing

Chris said...

Trademark law can eb quirky and I don't know the details, so it's still anyone's guess how this will play out.

Kami, the post you list is in Spanish, so I had to google translate it and the result was a little choppy, but it seemed like a fair review of Ngram Viewer. I liked the regular expressions part.

hamza said...

Yeah i think The App store Search problem can be solve

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