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Microsoft The Courts Windows Apple

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.'"
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If App Store's Trademark Is Generic, So Is Windows'

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  • by bunratty ( 545641 ) on Wednesday March 02, 2011 @09:23AM (#35355824)
    Similarly, Apple used the term windows before Microsoft created Windows. If your argument that App Store is a generic term is valid, then Windows is also generic. That is Apple's point.
  • Generic Trademarks (Score:5, Insightful)

    by Sonny Yatsen ( 603655 ) * on Wednesday March 02, 2011 @09:23AM (#35355832) Journal

    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.

  • by MikeRT ( 947531 ) on Wednesday March 02, 2011 @09:23AM (#35355834)

    "App Store" by itself is inherently generic. It literally just means "place where apps are sold." Trademarking it is as ridiculous as trademarking "shoe store" or "electronics store." Windows, used in the context of a computer product, is not generic. Rather, it's a specific, well-known product.

  • by commodore6502 ( 1981532 ) on Wednesday March 02, 2011 @09:28AM (#35355852)

    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)

    by moonbender ( 547943 ) <> on Wednesday March 02, 2011 @09:32AM (#35355896)

    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.

  • by ecuador_gr ( 944749 ) on Wednesday March 02, 2011 @09:35AM (#35355918) Homepage
    I think you are not seeing it correctly, the GP post is right. They did take a general user interface element and named their OS after it. That does not mean you cannot use "windows" to describe the GUI element, but you cannot ALSO name your OS "Weendows" or "Window OS" or whatever is confusingly similar to Windows. IANAL but as I understand it you could call your OS "Mouse Pointer" and trademark it, and no-one could use such a name for another OS. Now, what Apple is similar to trying to trademark "OS" as a name for their Operating System. Well, Application Store is the description of the item in question, and App Store is the short version used in many cases way before apple. I remember using the term myself.
  • by bunratty ( 545641 ) on Wednesday March 02, 2011 @09:36AM (#35355930)
    Yes, the statement "if App Store generic, then so is Windows", is logically equivalent to (the contrapositive of) "Windows is not generic, then neither is App Store". Microsoft's success at defending the Windows trademark therefore is a precedent for Apple successfully defending the App Store trademark.
  • Apple would have a point only if Microsoft had called their OS "Operating System". Calling their OS "Windows" after a major element of the GUI is more like trademarking a car "Engine" or "Trunk".
  • Re:That's stupid (Score:1, Insightful)

    by Nailer235 ( 1822054 ) on Wednesday March 02, 2011 @09:39AM (#35355950)
    I wish I had more mod points. This post is a great description of why Apple hardly has a trademark and is instead using a generic identifier, whereas "Windows" is a peculiar term that characterizes the software in a non-obvious manner.
  • by LoganDzwon ( 1170459 ) on Wednesday March 02, 2011 @09:40AM (#35355958)
    nope, they have it. It's very tricky to enforce though. X Windows is fine Lindows is not. see their own site; ie; [] "Windows is a registered trademark of Microsoft Corporation in the United States and other countries."
  • by EMN13 ( 11493 ) on Wednesday March 02, 2011 @09:40AM (#35355960) Homepage

    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)

    by matushorvath ( 972424 ) on Wednesday March 02, 2011 @09:44AM (#35355992)

    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.

  • by Culture20 ( 968837 ) on Wednesday March 02, 2011 @09:48AM (#35356018)

    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.

  • by zeroshade ( 1801584 ) on Wednesday March 02, 2011 @11:09AM (#35356862)

    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?

  • by Antisyzygy ( 1495469 ) on Wednesday March 02, 2011 @12:20PM (#35357670)
    Except that "app" is an abbreviation for "application". Apple was stupid for picking such a name, it is way too generic. If you can trademark "App Store" then I may as well be able to trademark "Shoe Store" or "Book Store".
  • by uniquename72 ( 1169497 ) on Wednesday March 02, 2011 @12:42PM (#35358030)
    The 2 aren't equivalent at all. I'm not surprised Apple is trying to argue they are, but I'm pretty shocked that people on /. -- who generally get the whole IP thing -- can't see through it.

    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. []

Disraeli was pretty close: actually, there are Lies, Damn lies, Statistics, Benchmarks, and Delivery dates.