If App Store's Trademark Is Generic, So Is Windows' 356
Toe, The writes "In response to Microsoft's attempt to dismiss Apple's 'App Store' trademark application, Apple references Microsoft's claim to the Windows trademark. '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.'"
Re:Are they kidding? (Score:5, Insightful)
Generic Trademarks (Score:5, Insightful)
You get a generic trademark when a product or service has become so ubiquitous in the field that the mark's name comes to represent the field rather than a specific company's product. (For example, escalators, or zippers, or Pilates.) I don't think Apple's argument that Windows is generic really flies very well. When the word "Windows" or "Microsoft Windows" are said, it creates a very clear image of what is being discussed - specifically, Microsoft's own operating system. However, when you say the word "App Store", I think that conjures up images of just about any sort of app stores that we have nowadays - Palm's, Blackberry's, Windows Phone's Android's, etc. Even though none of the other companies precisely use the term "App Store" in their product's name, the mark itself immediately conjures up the entire field instead of Apple's specific App Store service.
Comment removed (Score:4, Insightful)
Re:Are they kidding? (Score:4, Insightful)
I don't see Microsoft suing anybody because they say they are using Ubuntu with a windows GUI.
I can see Apple suing people to stop saying "app" or "app store"
That's stupid (Score:5, Insightful)
That's stupid. "Windows" may well be generic, but it's a very different situation from "App Store". What does the App Store do? It sells licenses to executables (and implements an infrastructure to that end). Those executables can be referred to by a very small set of words: application, program; others are overly specific (tool, utility, game) or overly technical (executable, binary). The place where one sells things can also be referred to by only a few words: market, store, shop (and those names for physical places are routinely metaphorically extended to refer to virtual places).
What I'm saying is that the name "App Store" is a fairly accurate description of what the App Store is. It's a natural name for it in the same manner that Red Truck is a natural name for certain kinds of large red vehicles. What's more, it's one of a fairly small set of accurate short names for such things.
So what about "Windows"? Certainly, the graphical user interface objects you often deal with are also windows. But what does Windows do? Well, it's an operating system, etc. etc. It does not do windows, though, neither is it a window or windows. Maybe it's a windows operating system, a compound noun similar to app store? I guess that'd be a fairly daft (or, possibly, creative) way of referring to an operating system that contains a GUI: in which case it'd be acceptable to refer to OS X as a windows operating system. Doesn't work very well.
So maybe the Windows trademark is generic since it's derived from a prominent/visible constituent object. But unlike app store, the trademarked name doesn't describe the whole thing. Instead it's is a case of metonomy, arguably a more creative process than compounding two very salient concepts.
Why yes, I am a linguist. Which I guess makes me quite unqualified to participate in a legal discussion. But sometimes it's fun to talk about these things as if they were bound to reason.
Re:Secondary Meaning (Score:4, Insightful)
Re:Are they kidding? (Score:4, Insightful)
Only if it was called "Operating System" (Score:2, Insightful)
Re:That's stupid (Score:1, Insightful)
Re:It's not Windows but "MS Windows" (Score:3, Insightful)
Re:Are they kidding? (Score:5, Insightful)
The question, however, depends on context. Within the context of OS's, Windows is not generic - there's no generic Windows OS, just microsoft's. Outside of that context, microsoft can't assert its trademark: you can still sell windows (the glass panes) or software using windows (the GUI element) irrespective of the fact that an OS has that name.
Similarly, Apple is allowed to call itself Apple despite the fact that an apple (the generic fruit) is a common word, and despite the fact that the name famously could cause confusion with Apple Records - context matters.
Within the context of application stores, the term app store is rather generic. Comparing this the the mark Windows seems like a publicity stunt rather than a real legal argument - it's not convincing at all. If they were selling a phone called app store, or shoe polish or whatever - they'd have a case. But they're calling an app store (the generic term) app store (the trademark).
That's like trying to trademark the word Apple for a particular brand of apples - good luck with that...
nonsense (Score:1, Insightful)
Nonsense, when you say "windows" in the OS context, you always mean Microsoft Windows. The term has not become generic, that would mean that people use "windows" to refer to OS that is not in fact Microsoft Windows. On the other hand, you could easily say "app store" and mean the android application repository. The term has not even become generic, it has always been generic. It never exclusively referred to Apple app store.
Re:Are they kidding? (Score:3, Insightful)
I can see Apple suing people to stop saying "app" or "app store"
That's personal opinion, of course. I, on the other hand, think that they wouldn't. You do need to realise that the only reason why Apple are doing this is because Microsoft are being such utter douchebags in the first place.
The only reason my husband beats me is because Jane's husband down the street beats her. Apple doesn't need Microsoft to be sue-happy douches. They do that quite well enough on their own, thankyouverymuch.
Re:Are they kidding? (Score:5, Insightful)
You do realize that you completely missed the point right? In the context of Gui elements, windows was the term for the rectangle on the screen containing the application. However, in the context of an Operating System (not Gui Elements) there is no generic Windows, only the microsoft Operating System product which is named Windows. There is no generic term Windows when speaking about Operating Systems, if you are talking about them and say Windows, everyone knows what you are talking about.
If you say "App Store" do you think people will instantly think of Apple's App Store, or do you think that they will think App Stores in general? Can someone tell you're talking about Apple's App Store without any clues other than the words App Store?
Re:Are they kidding? (Score:3, Insightful)
Re:Are they kidding? (Score:4, Insightful)
Let me spell it out:
"Windows" isn't actually a window -- it's an operating system. If they had called it "The Operating System" they'd have a hard time trying to keep anyone else from calling their OS "The Operating System."
There's no comparison between "Windows" and "App Store". It's not about "this name has been used before"; it's about a trademark-able name vs. a generic name. If I call my car parts store "Car Parts" you'd still be able to refer to your store as a car parts store.
It's called "descriptive trademarks" and you can read about it and its weaknesses -- assuming you can read -- here. [registerin...demark.com]