As tech companies fight for ubiquity, it’s no surprise that there should be disputes like this. Using common words for product names is always a risk, as is establishing generic traditions (like Apple’s “i-” prefix) that are difficult to regulate. At stake today is Apple’s trademark on “App Store,” which as I’m sure our readers are aware, was established in 2008 as arguably the first real marketplace through which independent developers could offer mobile applications, games, and so on.
They filed for the trademark at the same time. Since then, however, it has been contended by Microsoft in particular that Apple has no exclusive right to so generic a term, one which arguably could apply to any other mobile application store. It’s as if Kleenex trademarked “tissue” as well. Apple just turned the argument around, however, noting that Microsoft itself is maintaining a plainly generic term for its most prominent product: Windows. Windows, as we all know, are both transparent portals allowing light to pass from outside to inside, and a visual metaphor for navigating a computer operating system.
It’s a point worth considering. But not the only one.
Apple has a strong case: “App Store” was more or less popularized by them. There were no competitors for some time so “App Store” referred only to Apple’s for quite a long time. “App Store” is also (they say) a “double entendre” meant to evoke the Apple Store. That one surely got some eye rolls in the industry. Still, the term wasn’t chosen arbitrarily. And competitors have options, as evidenced by the names the likes of Google and RIM have come up with.
Microsoft’s claims are equally rational, though: can you really trademark such a broad term, just by being the first one there? “Any secondary meaning or fame Apple has in ‘App Store’ is de facto secondary meaning that cannot convert the generic term ‘app store’ into a protectable trademark.” In other words, “App Store” didn’t blow up because of Apple, but because it’s the term anyone would reach for when describing something of this type. It’s telling (but not legally obligating) that every similar service could also be called an “app store.” Observe this beautiful Venn diagram:
Surely that counts for something? The counter-argument is, of course, that we use that term now because it’s the term Apple made us use. It’s a chicken-egg argument of innovation or imitation. Let’s be honest, though, in the tech industry that’s rarely much of an argument. 99 times out of 100 it’s imitation.
Apple’s jab at Microsoft over the term Windows has slightly different factors, but it really is remarkably similar. Like Apple, Microsoft popularized but did not invent the “window” method of navigating a file system. You’re viewing this in a window, though you may not be viewing it in Windows. But Microsoft doesn’t go after people who say their application or OS opens a window, though there are equally applicable words: viewer, panel, tab. But “windows” are hardly a selling point now for OSes, and of course if Apple decided to change the name of OS X to “Windows OS X” because it has windows, Microsoft would have kittens.
Perhaps Apple can lay claim to popularizing the word “app”? That’s questionable. It’s just a diminutive of the term application, a term in use long before.
Furthermore, doesn’t the App Store operate under the umbrella of the iTunes Store? Look, in iTunes there’s an “Apps” section, next to Music and Movies. It’s not a separate store, really, any more than the music and movies sections are separate from each other. iTunes helped popularize online music ownership, yet Apple didn’t attempt to trademark “Music Store.” Isn’t it analogous?
There are numerous examples of trademarks becoming common words: Lego, Frisbee, Tazer. But these are nonsense words. They don’t refer to what they do. Apple seems to be attempting to do just this. It’s not clear whether Apple’s trademark is lawful, right, both, or neither. It’s a very nuanced issue. My personal opinion would be that “App Store” was generic to begin with but only had a sort of frosting of originality on it. But it’s a distinction of exceeding niceness, and a little argument might sway me the other direction.
What do you guys think? Is this a pot and kettle situation for Microsoft, with its Word and Office trademarks, or is Apple overreaching?
