[PC-BSD Testing] AppCafe naming concern

Dru Lavigne drulavigne at sympatico.ca
Sun Mar 6 05:19:57 PST 2011


Hi Ian,

Thanks for bringing this up. iX is in the process of applying for this trademark.

Cheers,

Dru

Date: Sun, 27 Feb 2011 11:24:08 -0500
From: fitchkendall at gmail.com
To: testing at lists.pcbsd.org
Subject: [PC-BSD Testing] AppCafe naming concern

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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