Apple back in May sued Amazon for trademark infringement, alleging that the “Amazon’s App Store” was too similar in name to Apple’s own iTunes app store. Amazon, not backing down, countered that the ‘app store’ designation is too generic to warrant trademark protection. Meanwhile, Microsoft, on its own accord, has challenged Apple’s ‘app store’ trademark application arguing as well that it’s too generic.
Apple fired back arguing that Microsoft worked hard to secure a trademark for ‘Windows.’
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. Yet, Microsoft, missing the forest for the trees, does not base its motion on a comprehensive evaluation of how the relevant public understands the term App Store as a whole.
That notwithstanding, Apple thus far hasn’t been too successful in its efforts to prevent anyone from using the ‘app store’ phrase. Back in late June, a US District Judge explained that Apple’s motion to block Amazon from using the ‘app store’ designation would probably fall short on account of Apple being unable to produce substantial evidence that customers might mistakenly use Amazon’s mobile marketplace and erroneously assume that they’re using Apple’s. In one court filing, Apple proclaimed that Amazon’s app store is an inferior marketplace that will “tarnish Apple’s mark.”
Just two weeks later, Apple’s request for a preliminary injunction against Amazon was denied because Apple was unable to sufficiently demonstrate “a likelihood of confusion.”
The issue, however, is ongoing and a trial date is set for October 2012. And while Apple’s motion for a preliminary injunction failed, Judge Phyllis Hamilton did note that the phrase “app store” is not purely generic.
Now that you’re all up to speed on that, Dan Frommer writes for SplatF that mobile developers in Germany can no longer submit their apps to Amazon on account of the ongoing lawsuit.
The following letter was sent out to German app developers this weekend:
Subject: Important Notice for Germany Based Developers
Dear Amazon Appstore Developer,
Thank you for your participation in the Amazon Appstore for Android. We wanted to notify you of a recent change to your Developer Portal account; for the time being, we are not accepting new app submissions from developers located in Germany. We have been forced to impose this restriction due to a legal action filed by Apple in Germany seeking to prevent us from using the term “appstore.” We believe Apple’s claim is without merit and are actively contesting it.
When you log into your Developer Portal account, you will notice that the options to add new apps have been removed. We hope to begin accepting new apps from German developers again soon and will notify you as soon as we are able to do so.
We appreciate your patience and your continued interest in the Amazon Appstore for Android.
Amazon Appstore Account Team
Developers in the US, however, seem to be a-OK. We’re not exactly sure why Germany is being singled out but imagine it has something to do with varying intellectual property laws.