We’ve been keeping a close eye on a dispute between Microsoft and Apple over the iPhone/iPad maker’s attempt to trademark the term “App Store” for its exclusive use. So it was fascinating to see this new commercial today, part of the broader “If You Don’t Have an iPhone” campaign.
So what does this say about the trademark dispute? For an opinion, we called trademark lawyer Bob Cumbow, at law firm Graham & Dunn in Seattle (who isn’t involved in the dispute). He said it could be a case of Apple being pragmatic about its chances of getting the trademark — seeing that those chances may be slim — and using marketing instead to drive home the connection between the phrase and its own app store.
“Recognizing that maybe (app store) has become generic, and maybe they’re not going to get benefits of federal registration, what they can do is continue to use the phrase and use advertising rhetoric … to try to still make that phrase distinctive in the minds of the public — even if they can’t make it distinctive in the minds of trademark regulators,” Cumbow said.
In its motion to throw out Apple’s trademark application, Microsoft argued that “app store” is “a generic name that Apple should not be permitted to usurp for its exclusive use.” It added, “Competitors should be free to use ‘app store’ to identify their own stores and the services offered in connection with those stores.”
At least Apple doesn’t say in its new ad, “If you don’t have an iPhone, you don’t have an App Store.” But even without going that far, it’s a gutsy move, considering the ongoing dispute. It will be interesting to see if it ends up playing a role at all in the arguments before the U.S. Trademark Trial and Appeal Board.
Speaking of those arguments, when last we checked in on them, Microsoft had asked the court to strike an Apple filing, saying that it was overlength and used a font that was too small.
According to the docket, the two sides resolved their differences over the filing in a phone call last week, and Apple filed a new version this week: PDF. It’s now within the 25-page limit, but frankly I can’t tell a difference in the font size from the previous version: PDF.
“There can be no question that the phenomenal popularity of the APP STORE service has made it the gold standard by which other online software marketplaces are judged,” Apple says in the new filing. “That this is so, however, hardly constitutes grounds for declaring APP STORE generic.”