At a hearing in an Oakland federal court on Wednesday, U.S. District Judge Phyllis Hamilton remarked that Apple has a "stumbling block" in proving that customers would confuse Apple's App Store with Amazon's Appstore for Android, Reuters reports.
That obstacle is Apple's inability to produce âreal evidence of actual confusion,â the judge said. âIâm troubled by the showing that youâve made so far, but thatâs where youâre likely not to prevail at this early juncture.â Hamilton has yet to make a final ruling in the case, and plans to reread some of the supporting papers, according to an individual present at the hearing.
In March, Apple sued the online retailer over its use of the App Store trademark. The complaint accused Amazon of "improperly using" the mark for its mobile software developer program and "unlawfully" using it to attract developers to its platform. Apple stated in its filing that it had contacted Amazon three times asking them to cease using the trademark, but had not received a "substantive response."
In spite of the suit, Amazon proceeded with opening its Appstore for Android just days later. The digital download service includes a "Test Drive" feature that allows users to try out an Android application before buying it.
Amazon eventually responded with a filing, claiming the "app store" term is generic and would not cause confusion. Apple has countered the argument with subsequent filings, including one that alleges the Amazon Appstore is "inferior and will tarnish Apple's mark." According to Apple, Amazon's storefront poses a security threat because it offers applications for "rooted" Android devices, which are more vulnerable to security breaches.