By Josh Ong
Published: 08:40 PM EST (05:40 PM PST)
Microsoft has fired the latest salvo in a legal dispute over Apple's "App Store" trademark, citing the launch of the Amazon Appstore as proof of a "competitive need" for generic use of the term.
The Redmond, Wash., software giant filed a legal reply
on Tuesday rebutting Apple's arguments for the validity of its "App Store" trademark, as noted by
GeekWire. In the filing, Microsoft cites the recently launched Amazon Appstore as evidence that the term is generic and vital to competitors.
According to Microsoft, the launch of the Amazon Appstore makes a total of 17 Apple competitors that use the term to promote their online storefronts. “These uses, despite Apple’s continuing enforcement campaign, show beyond dispute that there is a competitive need for the term,” asserted Microsoft.
"Apple strains to keep “App Store” for its exclusive use, even claiming that its online stores are not real stores, only metaphorical ones. But Apple cannot escape the hard truth: when people talk about competitors’ stores, they call them “app stores,”" the filing read, adding that Apple CEO Steve Jobs himself has referred to other application marketplaces generically as "app stores."
The filing asserts that Apple's own arguments, which include prior cases, press coverage and the aid of a linguistic expert, actually serve to further prove the genericness of the disputed mark. Microsoft has also employed its own linguistic expert, Dr. Ronald Butters, to counter Apple's claims.
Citing a case involving Greenliant Systems and its dismissed "nandrive" trademark, Microsoft shows that a term can be classified as generic with just a few articles and a dictionary entry. "It is not about counting articles that mention an applicant, but rather whether there is persuasive evidence that the term is used to name the genus of goods," the filing argued.
Microsoft first lodged its opposition to the trademark
in January. Earlier this month, Apple fired back by arguing that the term "Windows" was generic but still granted to the company because it held "the primary significance of the term to a substantial majority of the relevant public." Microsoft
responded by pointing out that Apple's brief was too long and used a font size that was too small.
Apple has sought to vigorously defend the "App Store" trademark in an effort to prevent genericization, which would invalidate the mark. Last week, the company
sued Amazon in advance of the launch of the online retailer's Android application store.
The iPhone maker also sent a
cease-and-desist letter to an Android-targeted pornography store billing itself as "the world's first app store for adults." Apple has maintained a strict no-pornography rule for the App Store. Jobs has said, "That's a place we don't want to go, so we're not going to."
