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If App Store's Trademark Is Generic, So Is Windows'
Toe, The writes "In response to Microsoft's attempt to dismiss Apple's 'App Store' trademark application, Apple references Microsoft's claim to the Windows trademark. 'Having itself faced a decades-long genericness challenge to its claimed WINDOWS mark, Microsoft should be well aware that the focus in evaluating genericness is on the mark as a whole and requires a fact-intensive assessment of the primary significance of the term to a substantial majority of the relevant public.'"
It *is* generic because I was using the term well before Apple. In fact I was using it in a PC environment. At my job, which is a fairly large government agency, if we wanted to install software on our computers then we were told to "look in the appilcation store" to see if it had been approved. If it was then we could "order" the app and it would either automatically install at boot, install pending license validation, or hold for technician assistance. And often times amoung the more savy folks it would just be called the app store.
So suck it Apple.
If you can't be good, be good at it!
It's time for you to learn a lesson: it's not a copyright issue, but a trademark one.
This isn't about copyrights, this is about trademarks.
My postings are informational and does not constitute legal advice. Act on it at your risk.
Windows, in its literal meaning, implies a hole in the wall, often filled with glass, for the purpose of providing visual penetration or airflow.
Windows, in its secondary meaning, refers to an operating system written by Microsoft.
"App Store" has no secondary meaning as far as I can see, as its literal and "secondary" meanings are identical.
Now, losing a trademark on grounds of genericness, aka "being adopted by webster", is something else.
For examples, I see "xerox" and "google" in danger in this way.
How far of a leap is it to say that application is just a longer form of app so it's also covered under trademark. No more application developers unless you want to be sued. I know it's a stretch but application was really the first word that popped in my head when i read app. not the brand Apple.
You get a generic trademark when a product or service has become so ubiquitous in the field that the mark's name comes to represent the field rather than a specific company's product. (For example, escalators, or zippers, or Pilates.) I don't think Apple's argument that Windows is generic really flies very well. When the word "Windows" or "Microsoft Windows" are said, it creates a very clear image of what is being discussed - specifically, Microsoft's own operating system. However, when you say the word "App Store", I think that conjures up images of just about any sort of app stores that we have nowadays - Palm's, Blackberry's, Windows Phone's Android's, etc. Even though none of the other companies precisely use the term "App Store" in their product's name, the mark itself immediately conjures up the entire field instead of Apple's specific App Store service.
My postings are informational and does not constitute legal advice. Act on it at your risk.
"App Store" by itself is inherently generic. It literally just means "place where apps are sold." Trademarking it is as ridiculous as trademarking "shoe store" or "electronics store." Windows, used in the context of a computer product, is not generic. Rather, it's a specific, well-known product.
AFAIK, Microsoft got rejected when they tried to register "Windows" as a trademark and went for "MS Windows" and "Microsoft Windows" which both are valid trademarks.
Apple had trouble with it's name as Apple was used by a record company before... They got through it by agreeing to not sell music... Untile they started iTunes and the whole issue came back...
"App Store" by itself is a généric name and should not be copyrightable (same for App Market and so on). But Apple can trademark "iTunes" and "Apple App Store" if they want...
But they'll have trouble enforcing the "App Store" trademark...
That's stupid. "Windows" may well be generic, but it's a very different situation from "App Store". What does the App Store do? It sells licenses to executables (and implements an infrastructure to that end). Those executables can be referred to by a very small set of words: application, program; others are overly specific (tool, utility, game) or overly technical (executable, binary). The place where one sells things can also be referred to by only a few words: market, store, shop (and those names for physical places are routinely metaphorically extended to refer to virtual places).
What I'm saying is that the name "App Store" is a fairly accurate description of what the App Store is. It's a natural name for it in the same manner that Red Truck is a natural name for certain kinds of large red vehicles. What's more, it's one of a fairly small set of accurate short names for such things.
So what about "Windows"? Certainly, the graphical user interface objects you often deal with are also windows. But what does Windows do? Well, it's an operating system, etc. etc. It does not do windows, though, neither is it a window or windows. Maybe it's a windows operating system, a compound noun similar to app store? I guess that'd be a fairly daft (or, possibly, creative) way of referring to an operating system that contains a GUI: in which case it'd be acceptable to refer to OS X as a windows operating system. Doesn't work very well.
So maybe the Windows trademark is generic since it's derived from a prominent/visible constituent object. But unlike app store, the trademarked name doesn't describe the whole thing. Instead it's is a case of metonomy, arguably a more creative process than compounding two very salient concepts.
Why yes, I am a linguist. Which I guess makes me quite unqualified to participate in a legal discussion. But sometimes it's fun to talk about these things as if they were bound to reason.
Switch back to Slashdot's D1 system.
BadAnalogyGuy, is that you? Because you say that "truth in advertising" should teach them a lesson about copyright in a trademark case?
Live today, because you never know what tomorrow brings
http://groups.google.com/groups/search?as_q=windows&as_epq=&as_oq=&as_eq=&num=10&scoring=&lr=&as_sitesearch=&as_qdr=&as_drrb=b&as_mind=1&as_minm=1&as_miny=1981&as_maxd=1&as_maxm=1&as_maxy=1985&as_ugroup=&as_usubject=&as_uauthors=&safe=off
96,000 'windows' posts before 1985 suggest that many people did associate 'windows' with computers (but not necessarily Microsoft) before the release of MS Windows.
Please? There's a reason why you can't place a trademark on normal everyday words as "intellectual property".
I am officially gone from
I'd be curious to see how often 'app store' was used in a generic sense before Apple started using it.
English is not this
They lost in the English speaking world, shopped around until in Finland, they won (because those glass holes in walls you look through aren't called windows in finland).
At that point, Lindows sold their name to Microsoft and changed to Linspire because MS could have sued in Finnish courts and since they don't make much money off it, it would cost them their company to continue. Since prosecution would cost Microsoft some pocket change, they used it to buy the trademark and end it.
My vendor had no problem just using a different name for their store and don't have a problem with people finding it. They call their store "Warez"
The huge difference is that Microsoft doesn't actually sell actual windows, they sell software. Just like Apple doesn't actually sell apples they sell computers. An App Store sells apps...that's the difference here. If Windows were the brand of actual windows it wouldn't be a trademark because it would be too generic. This is really a really stupid argument.
The full name for SQL Server (MSSQL) is Microsoft® SQL Server. It's just shortened by most of the tech community both internally and externally of Microsoft.
Hate to be picky but I'm seeing two trademark symbols on that page: Microsoft® SQL Server®
Besides, if you check out Microsoft's own list of trademarks you'll see 'SQL Server' in there all on it's own:
http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Trademarks/EN-US.aspx
The term "Window" when referring the an operating system user interfaced is at least as old as 1980 before windows 1.0 was even released. Microsoft didn't invent the use of the word Windows for describing the type of interface they were using. That term was already in wide use in the computer world before MS even started developing Windows (TM).
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
omg! of course it's copyrighted by apple. ... ... so every app developer should pay 30% to apple! ;-)
everybody knows "app" comes from "apple".
as in apple store -> app store
Their mark applies to
. In other words, it only applies to the "boxed product". I can still tell you that "Apache Derby is an SQL Server" because I am referring to a downloadable program, not a saleable functional complete product with manuals.
I think this shows you why lawyers and patent agents get paid according to the amount of weasel in their heredity. Clearly someone at Microsoft demanded that SQL Server get trademarked, and the scope got narrowed and narrowed until at last the USPTO rolled over.
Me, I always refer to it as "Microsoft ess queue el server 2008" because i won't play those silly games. As for people who call it "sequel", they need to get off my (IBM-coloured) lawn, because I can remember SEQL!
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Nonsense, when you say "windows" in the OS context, you always mean Microsoft Windows. The term has not become generic, that would mean that people use "windows" to refer to OS that is not in fact Microsoft Windows. On the other hand, you could easily say "app store" and mean the android application repository. The term has not even become generic, it has always been generic. It never exclusively referred to Apple app store.
Not so... The Apple App Store came out prior to the Android store, and prior direct-to-phone software stores had other names, like that Verizon abortion, VCast.
How far of a leap is it to say that application is just a longer form of app so it's also covered under trademark. No more application developers unless you want to be sued.
A huge leap. Their trademark isn't on "App" or "Application", but on "App Store", and only in that specific field.
Except for the first few years Windows was not an OS!!! Windows was a "windowing add-on". Not to mention they were last on the market to introduce windows. It's more like switching from horse-drawn carriage to automobile and trademarking "Automobile", then going after competitors with infringement lawsuits.
I do, and many of my colleagues have used windows in the OS context to refer to Star, X Windows. In fact, when MS started using the term windows as a specific description everyone in the u=industry thought they were nuts and where going to use it because ANY OS that displayed a canvas was referred to was windows.
And that, my friends, is what happens when computer people make legal statements in areas that know nothing about. Often wrong, and based on ignorance.
It ONLY referred to the Apple store in 1987, when it was filed.
The Kruger Dunning explains most post on
It would help to have a bit of trademark law primer to understand the issue here. A "trademark" is a "mark" (a name or graphic, etc.) that is used in commerce to identify the source of a product. There are five types of marks: fanciful, arbitrary, suggestive, descriptive, and generic.
A fanciful mark is one that has no prior meaning, and thus usually is a made-up word. (e.g. Kodak, Verizon, Slashdot)
An arbitrary mark is a word with existing meaning but is arbitrarily connected to the product which it labels. So therefore "Apple" is arbitrary when it is used to describe a manufacturer of computers, but not when used to describe an apple farmer.
A suggestive mark is one that *suggests* a quality or feature of the product, but does not describe it directly. Courts usually describe such a mark as requiring a "step of imagination" to get from the mark to the product. Examples include "Coppertone" for suntanning lotion, or "Playboy," or "Home Depot," or "SourceForge."
A descriptive mark is one that directly describes a quality or feature of the product: "International Business Machines," "American Telephone and Telegraph"
Finally, generic marks are those that merely describe the general class of which the product is a member: "corn flakes," "raisin bran," etc.
Fanciful, arbitrary and suggestive marks are considered "inherently distinctive." They can be registered as-is (subject to minor restrictions, like being used in commerce), and immediately grant their owner the right to prevent others from using that mark in commerce. (To be clear, it does not prevent other people from using it for non-commerce purposes, nor does it prevent "nominative" use, where the other party is using it to describe the trademark owner's actual product -- as in, "our service is better than Verizon's")
On the opposite extreme, generic marks are never protected. The middle ground is for descriptive marks, which have to have acquired "secondary meaning" before they can be protected. This means that, despite its lack of inherent distinctiveness, the public must have come to associate that mark with the source. For example, when someone sees "IBM" on a computer they have a very specific idea of the company that produced that product.
The question, it would seem, is whether "App Store" is descriptive or generic, and if descriptive, has it acquired secondary meaning? It seems to me that it is *not* suggestive -- one does not need a leap of imagination to realize that an "App Store" is a store where one buys apps. Personally, I'm inclined to say that it is generic -- an "App Store" is a class of stores, of which "Apple App Store" is one member (the latter is protected as an arbitrary mark, btw).
This contrasts with "Windows," which is either suggestive or descriptive with acquired secondary meaning. Arguably, one needs imagination to jump from the mark "Windows" to "an operating system with graphical user interface." One could claim that "Windows" merely describes one aspect of that operating system, namely that it displays windows, but the counter argument would be that the term "window" itself, as used for a collection of pixels on the screen that displays the output of a computer program, is itself a suggestive term (i.e., it bears little resemblance to the traditional definition of Windows). Furthermore, even if descriptive, "Windows" has acquired secondary meaning, as it is universally understood to refer to the Microsoft product. Whoever first coined that term might have had the right to prevent Microsoft's use at some point, assuming that they used it in commerce, but that right has lapsed by failure to maintain it.
Anyways, that's what they taught me in IP class in law school. Hopefully that is helpful.
No, I did not suggest that words don't have meaning apart from trademarks. However, the words 'Apple iPhone' do NOT have meaning apart from trademarks (well, Apple does, but it means a piece of fruit). The only way anybody has any expectation of what an 'Apple iPhone' is is because it is a BRAND (ie trademarked). In the absence of trademarks and hence branding Apple is just another generic term for 'consumer electronics manufacturer' and iPhone is just another generic term for smart phone. Take the word 'aspirin'. What does it mean? Does it say anything about who manufactured it? It used to be a trademarked term for pain reliever sold by Bayer. Ever hear of anyone being sued for fraud for selling something other than the Bayer product as aspirin (since the trademark was lost)? If I sell you a thermos bottle are you going to sue me if it wasn't made by Thermos GMBH? What you are suggesting is that through 'common use' it becomes obvious who the manufacturer is, when in reality exactly the opposite happens.
I don't know if you are trolling or really believe the crap you are saying, but none of it makes any sense. First, I challenge you to name a single thing that, "in the public's mind" is associated with a specific manufacturer or product WITHOUT trademark protection. None of this 'it could happen' bullshit, actual examples. In the real word exactly the opposite happens - no trademark protection means what was formerly associated with a manufacturer is now just a generic term for a type of product regardless of manufacturer.
Next, no, your personal name does not identify you. It is just something that is used by those who know you to refer to you. If your name alone actually means something to the public at large you are a celebrity and have probably trademarked your name in the particular field you are in. Your actual 'brand' is more likely your SSN or similar, and guess what - your 'brand' is also protected by law.
Yes, the term 'aspirin' now refers to a particular drug. However, not all aspirin is the same - there are different coatings, etc. How do you know which you are purchasing? Easy - they still put trademarks (Anacin, Bayer, Excedrin, etc) on them. The only items marked simply 'aspirin' are generics. If all you want is a generic that is OK. If you want the product from a specific manufacturer for some reason you go by the trademarked name.
Lastly, your point about fraud is just plain stupid. Basically your argument is 'we don't need laws making it illegal to use someone else's brand, because using someone else's brand is illegal'. That is circular logic at it's finest.