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There's a war raging between Apple and Microsoft over the use of the term "App Store." Apple says they should own the trademark to it, and Microsoft says it's too generic a term, and that anyone -- and everyone -- should be allowed to use it.
Apple's lawyers were strutting their catty best in a filing Monday night, saying:
"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," says Apple in the filing. "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."
It seems that the comment about Windows would ring truer if Microsoft were in the business of selling actual windows, but, hey, I'm not a lawyer. As it is, Apple sells apps in an online store; one wonders if a grocery store claiming the trademark for "Grocery Store" would meet with their approval.
Microsoft disagrees with Apple's interepretation of the viability of their trademark application, naturally:
Microsoft argued in a previous filing that 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."
Among other pieces of evidence, the Microsoft filing noted that the media and even Apple CEO Steve Jobs have used the phrase generically. Jobs, for example, once referred in an interview to a new crop of Android "app stores."
This is convoluted: on the one hand, Apple does call it the App Store, and that's the product name. On the other hand, it is pretty generic. Only the USPTO Trademark Trial and Appeal Board can resolve this deadlock, which they'll do, deciding whether to grant Microsoft's motion to dismiss Apple's application, or to allow the case to continue to trial.