Protect the Strength of Your Trademark

Is APP STORE a trademark? That is the subject of a dispute between Apple and Microsoft that is currently pending in front of the Trademark Trial and Appeals Board (“TTAB“). Apple claims that the term is in fact a trademark and that it belongs to them. According to Apple, if another company sells applications, they cannot call their mechanism for selling the applications an App Store, because doing so would infringe Apple’s trademark rights. Microsoft sees it a bit differently. Microsoft argues that the term App Store is generic and not actually a trademark at all. Their position is that just as you buy shoes from a shoe store and books from a bookstore, you buy apps from an app store and Apple cannot prevent others from using that term.

While Microsoft and Apple will undoubtedly make this seem more complicated that it needs to be, the fate of the term APP STORE rests in the answer to a simple question. When you tell your friend that you just bought the latest holiday version of Angry Birds from the App Store, do they think you mean you bought it from Apple’s App Store or that you bought it from any old company that just happens to sell apps? That’s right, at the end of the day consumer impression of the mark will likely determine its fate.

Apple is fighting hard to ensure that APP STORE is recognized as a trademark because there is significant value to them if they can prevent others from using the mark. And maybe Apple is right, maybe APP STORE is Apple’s trademark. Had anybody even heard of an App Store before Apple released its iPhone? But maybe Microsoft is right. Was there really any need for an App Store before Apple released its iPhone? But now that there is a need, of course you would call it an app store, it is just a store that sells apps. But there is another possibility. Maybe they are both right and the App Store trademark is a victim of its own success.

When Apple’s App Store first arrived on the scene, it was the only one around. There was no need to differentiate it by calling it Apple’s App Store; to the general public it was simply The App Store. With the increased popularity of non-Apple smart phones, a need has arisen for other companies to sell applications that are used on these non-Apple phones. Because Apple has been so successful with the Apple App Store and the general public has become so comfortable with the term App Store, the term has simply stuck. Whether or not Company X calls their mechanism for selling applications an App Store, the consumer buying the applications from Company X does call it an App Store. And nobody really cares if the application came from Apple or not. This is how a mark becomes generic. It no longer refers to the specific product put out by Apple, but to all the similar products put out by every company. And what was once a very valuable mark that only Apple could use may now be generic and freely used by anybody.

It may not be fair, but App Store just may be on its way to joining zipper, escalator, and countless others in the trademark graveyard.

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