Apple Just Can't Win for Losing

Once again, I find myself writing about Apple.  In this iteration, Apple sued Amazon.com, Inc. for false advertising and trademark infringement with respect to Amazon's "Appstore."  As you may expect, Apple claims that Amazon's "Appstore" infringes upon its "App Store" trademark. A judge recently determined that Amazon's "Appstore" does not constitute false advertising. 

The two companies remain locked in litigation over the trademark claims.  Interestingly, when battling Microsoft in earlier litigation over the "App Store" name, Apple and Microsoft hired linguist experts.  Unsurprisingly, Apple's linguist opined that the words were a proper noun and Microsoft's linguist claimed that the term was "generic" and/or descriptive of the product.  If true that the term is "generic," then it is not a trademark.  If descriptive, then Apple would have to provide additional proof that the term signifies that Apple is the source of the online store in the mind of a consumer. 

Apparently, Apple applied for registration of the mark in 2008 and it published for opposition in 2010 (which indicates that there were several office actions that Apple had to overcome).  Microsoft opposed the registration which resulted in the initiation of litigation to determine whether the term "App Store" may be a proper trademark.  Apple's registration is on hold pending the outcome of the litigation between Microsoft and Apple.    

Getting back to Apple vs. Amazon, the United States District Court, in ruling in favor of Amazon, did not find any evidence that a consumer accessing the Amazon "Appstore" would be confused by or expect it to be identical to Apple's "App Store."  Indeed, Amazon's store sells apps for Android phones/devices while Apple's sells apps for its iPhones and iPads. 

What I find interesting is that there was no ruling on the trademark aspect of the case.  Usually, courts do not give consumers enough credit and often determine that such consumers are easily confused.  However, it appears to me that with the advent of smartphones and tablets, the common usage of internet search engines, etc., consumers are actually not so easily duped.  Despite what the linguists say, I would be surprised if a significant number of consumers would believe Amazon's store to be the same as Apple's.  Hopefully, the courts will begin to give us consumers a little more credit.