Judge Phyllis Hamilton, who is presiding over the Amazon-Apple “app store” war, certainly meant it when she said she would “probably” reject Apple’s request for a preliminary injunction. And that’s exactly what she did. Hamilton earlier referred to Apple’s proof as a “stumbling block” in its case against Amazon, noting that there isn’t much “evidence of confusion” between the two stores. In an 18-page order, Hamilton explains that Apple has not proven that its App Store is “prominent” and “renowned,” which I guess it has to be in order achieve the status necessary for shutting down Amazon’s Appstore for Android.
The judge also remarked that the term “app store” is used by other companies as a generic term for a place to buy software and apps – basically the equivalent of the term “grocery store” being used by Kroger’s, Albertson’s, Piggly Wiggly, etc.. That’s a pretty big blow to Apple’s argument, which hinged on the notion that companies such as Microsoft and Google had circumvented the term “app store,” opting for more original names like Windows Marketplace and Android Market.
It’s a bit sad since Apple did coin the term exclusively back when the store launched, just over three years ago. Since then, Hamilton explains, other companies have started to use the term more generically. The judge also noted that there’s a lack of evidence to suggest that Amazon purposefully used “app store” to create an association between the two stores. She even went so far as to say that there is no evidence of an association at all, which is kind of mind-blowing, since the stores do share a name.
On the other hand, you’d have to be pretty new to the smartphone scene to try and download an Android app onto your iPhone. But there are people out there who will, surprisingly enough, and Apple knows this, which is why the tech giant tried to trademark the term back in 2008. Microsoft stepped in at that point and opposed the motion, a move that many people found curiously petty during the massive PC vs. Mac showdown.
Microsoft called the term generic then, and Amazon has done the same now quite successfully. Amazon claims that its use of the term “app store” is not as a trademark, but rather a way of informing customers that the site they’re visiting is, in fact, a place to download apps. Since this motion was for a preliminary injunction, Apple will get another shot to make its case in a little over a year at a trial set for October 15, 2012.