Tuesday, March 01, 2011, 12:35 pm PT (03:35 pm ET)
If 'App Store' trademark is generic, so is Microsoft's 'Windows,' Apple arguesApple has responded to Microsoft's complaint over a trademark filing for the term "App Store," with the iPhone maker calling out Microsoft's ownership of the name "Windows."
In its efforts to obtain a trademark for its App Store for iOS and Mac OS X, Apple has fired back at a complaint from Microsoft, according to TechFlash. Apple has argued with the U.S. Patent and Trademark Office that it is entitled to ownership of the App Store trademark in much the same way Microsoft is allowed to own "Windows" for its operating system.
"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," Apple wrote.
"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."
Apple's comments come in response to Microsoft, which filed an objection to Apple's "App Store" trademark application in January. The Redmond, Wash., software giant has asked the USPTO to reject Apple's request on the grounds that the term "app store" is "generic for retail store services featuring apps and (is) unregistrable for ancillary services such as searching for and downloading apps from such stores."
"'App' is a common generic name for the goods offered at Apple's store, as shown in dictionary definitions and by widespread use by Apple and others," Microsoft wrote. "And 'Store' is generic for the 'retail store services' for which Apple seeks registration, and indeed, Apple refers to its 'App Store' as a store."
In its own response to the USPTO, Apple cited linguistics expert Robert Leonard who said the predominant usage of the term "App Store" is in reference to Apple's digital storefront. Apple also noted that Microsoft uses the term "Marketplace" for its own online store to avoid using the terms "app store."
The case will be decided by the USPTO's Trademark Trial and Appeal Board. Apple first filed for the App Store trademark soon after the iOS digital storefront launched in 2008.
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