Microsoft v. Apple – Is APP STORE generic?

Big Bad Microsoft beats up on Big Bad Apple

It’s always fun when one behemoth goes after another on a trademark conflict.  Here, Microsoft is opposing Apple’s US trademark application to register the mark APP STORE.  Apple takes the position that they own it; Microsoft takes the position that it is generic and all should be free to use it.

When Apple filed its trademark application, it was refused as descriptive.  Apple feebly tried to argue that (1) because “app” can have meanings other than “application”, such as “apparatus”, “appendix” or “appointed”, and (2) consumers were likely to associate the word APP with “Apple” because of their similarity (!), the mark was not descriptive.  This argument did not go over.  However, in US trademark practice, the applicant gets a second bite at the apple (sorry, couldn’t resist), and on the second go-round, Apple put in tons of evidence that the mark has acquired distinctiveness through Apple’s use, and the application was approved.  Then Microsoft lodged its opposition.

Microsoft notes that even Steve Jobs has referred to  “app store” as a generic term, claiming that he mentioned on a conference call with financial advisors that several wireless phone carriers would be launching app stores for the Android.  That doesnt’ look so good for Apple.  On the other hand, I took an informal survey of two teenagers, neither of whom owns an iPhone or iPad, asking them what they think of when they hear “app store”.  They both associated it only with Apple and Apple products.  This will be one to watch.