[PC-BSD Testing] AppCafe naming concern

Ian Robinson fitchkendall at gmail.com
Sun Feb 27 08:24:08 PST 2011


Brief review:

1.  Apple calls its software store "The Apple Online Store" and "Apple
Store" (http://store.apple.com/us)

2.  The term "App Store" and "Mac App Store" are service marks (SM) used by
Apple.  (http://www.apple.com/legal/trademark/appletmlist.html)

A trademark is a word, phrase, symbol or design, or a combination thereof,
that identifies and distinguishes the source of the goods of one party from
those of others. A service mark is a word, phrase, symbol or design, or a
combination thereof, that identifies and distinguishes the source of a
service rather than goods. The term “trademark” is often used to refer to
both trademarks and service marks.  (http://www.uspto.gov/faq/trademarks.jsp
)

3.  Apple has filed a trademark application for the phrase "There's an App
for That" (
http://www.patentlyapple.com/patently-apple/2009/12/apple-files-for-trademark-theres-an-app-for-that.html
)

4.  It would take a lot of $$$ to fight Apple (They took on the Beatles,
yes), but we can watch the big boys fight this out as Microsoft has
challenged Apple's trademark efforts (
http://ttabvue.uspto.gov/ttabvue/v?pno=91195582&pty=OPP&eno=5) saying, among
other things, that "'App store' is a generic name that Apple should not be
permitted to usurp for its exclusive use. Competitors should be free to use
'app store' to identify their own stores and the services offered in
connection with those stores."  The blow-by-blow argument goes like this:

“App Store” Is Generic for Retail Store Services Featuring “Apps”

“App” Is a Generic Name for Software Applications

"Store” Is Generic for Retail Store Services

“App Store” Is Widely Used in the Trade as the Name for Online Stores
Featuring Apps

“App Store” Is Widely Used in the General Press as the Name for Online
Stores Featuring Apps

Competitors Use “App Store” to Identify Their Services

Apple Founder and CEO Steve Jobs Uses “App Stores” to Identify Competitors’
App Stores

Consumers’ Use of “App Store” to Identify Competitors’ Retail Stores Is
Direct Evidence of Genericness

“App Store” Is Generic for Retail Store Services Featuring Apps

Consumer Awareness or Fame of Apple’s “App Store” Cannot Negate Genericness


(see Microsoft's Jan 10, 2011 Motion for Summary Judgment here:
http://ttabvue.uspto.gov/ttabvue/ttabvue-91195582-OPP-5.pdf)


5.  Perhaps ix systems should file its own application for a trade mark or
service mark now as "AppCafe" is an unusual if not unique and previously
unused "word."


Ian Robinson
Salem, OH
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