Amazon requests judge throw out Apple's claim of false advertisement

Apple first filed suit against Amazon in March 2011 for using the "App Store" trademark in its online store for Android apps, and added the false advertising claim in November the same year after the "Amazon Appstore for Android" changed to the "Amazon Appstore." The Cupertino company asserts the name change possibly confused consumers.

In its filing on Wednesday, Amazon countered, claiming the "app store" moniker has become generic and therefore cannot constitute false advertising. The company went further, noting that Apple CEO Tim Cook and late cofounder Steve Jobs used the name to describe competitors, with Cook having referred to "the number of app stores out there" and Jobs noting the "four app stores on Android."

"Apple presumably does not contend that its past and current CEOs made false statements regarding to those other app stores to thousands of investors in earnings calls," Amazon said. "To the contrary, the use of the term 'app store' to refer to stores selling apps is commonplace in the industry."

U.S. trademark law leaves the defense of name use up to owners, and a failure to effectively protect a property can result in a trademark becoming a generic description of a service or product, as Amazon argues regarding its use of "app store."

Previous to Apple's original 2011 claim, Microsoft objected to the "App Store" trademark application, claiming the term was too generic to be registered. Apple argued that if Microsoft was able to trademark "Windows," the "App Store" name should be honored as well.