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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.'"
Similarly, Apple used the term windows before Microsoft created Windows. If your argument that App Store is a generic term is valid, then Windows is also generic. That is Apple's point.
What a fool believes, he sees, no wise man has the power to reason away.
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...
On the other hand, "Apple" implies a fruit of the apple tree (Malus domestica L.), generally used for the purpose of nourishment.
Ok, trolling, I just couldn't resist. And I see your point.
However it always surprises me when people (Apple, Microsoft, you name it) waste time in scolding each other on such trivialities. (To anybody who is going to say trademarks are not trivialities as lots of money are involved etc... I am aware of all that. I just find it all meaningless.)
Mostly harmless.
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.
But Microsoft does sue companies that make products with names similar to Windows. They sued Lindows. If Microsoft can successfully sue over the Windows trademark, why can't Apple successfully sue over the App Store trademark?
What a fool believes, he sees, no wise man has the power to reason away.
I think you are not seeing it correctly, the GP post is right. They did take a general user interface element and named their OS after it. That does not mean you cannot use "windows" to describe the GUI element, but you cannot ALSO name your OS "Weendows" or "Window OS" or whatever is confusingly similar to Windows. IANAL but as I understand it you could call your OS "Mouse Pointer" and trademark it, and no-one could use such a name for another OS. Now, what Apple is similar to trying to trademark "OS" as a name for their Operating System. Well, Application Store is the description of the item in question, and App Store is the short version used in many cases way before apple. I remember using the term myself.
The question, however, depends on context. Within the context of OS's, Windows is not generic - there's no generic Windows OS, just microsoft's. Outside of that context, microsoft can't assert its trademark: you can still sell windows (the glass panes) or software using windows (the GUI element) irrespective of the fact that an OS has that name.
Similarly, Apple is allowed to call itself Apple despite the fact that an apple (the generic fruit) is a common word, and despite the fact that the name famously could cause confusion with Apple Records - context matters.
Within the context of application stores, the term app store is rather generic. Comparing this the the mark Windows seems like a publicity stunt rather than a real legal argument - it's not convincing at all. If they were selling a phone called app store, or shoe polish or whatever - they'd have a case. But they're calling an app store (the generic term) app store (the trademark).
That's like trying to trademark the word Apple for a particular brand of apples - good luck with that...
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.
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."
You do realize that you completely missed the point right? In the context of Gui elements, windows was the term for the rectangle on the screen containing the application. However, in the context of an Operating System (not Gui Elements) there is no generic Windows, only the microsoft Operating System product which is named Windows. There is no generic term Windows when speaking about Operating Systems, if you are talking about them and say Windows, everyone knows what you are talking about.
If you say "App Store" do you think people will instantly think of Apple's App Store, or do you think that they will think App Stores in general? Can someone tell you're talking about Apple's App Store without any clues other than the words App Store?