Amazon still fighting off Apple over ‘app store’ trademark

by Phil Hornshaw

Despite protests from just about everybody else in the mobile sphere, Apple has trademarked the term “App Store” for its iTunes App Store. And since Amazon calls its Android app sales portal the “Amazon Appstore,” Apple has been trying to fight it in court since March.

According to a new story from GigaOM, Apple has amended its complaint against Amazon to include false advertising in addition to trademark infringement. Already, the complaint claims that Apple’s iOS mobile operating system brand is synonymous with the words “App Store,” and so allowing Amazon to use it creates confusion among the public and hurts Apple’s brand and sales.

The harm Apple is describing is directly related to the kind of business Amazon runs with the Appstore. Apple says that while it tightly controls its own iTunes App Store to make sure only quality apps make it in (itself a debatable assertion), Amazon doesn’t do as much to guard users against things like malware or the misappropriation of user data. And that lack of quality control can damage Apple’s brand by association through the use of the words “App Store.”

Meanwhile, Amazon (and Microsoft and Google) argue that “app store” is actually a generic term for any app distribution portal online, and that Apple can’t patent such generic phrasing. Amazon also responds that, given that the Amazon Appstore is for Android devices and Apple’s is for its own iOS devices, there’s no harm done for Amazon using the term, and Apple couldn’t prove that it’s being harmed by the use of the words anyway.

The false advertising accusation from Apple is derived from the Amazon Kindle Fire. According to Apple’s filing, Amazon has de-emphasized the Android identifier with its ads for the bargain-priced tablet. Without the Android moniker, Apple claims, there’s even more possibility of confusion between “App Store” and “Appstore.” Here’s a quote from the filing from GigaOM’s story:

Amazon's use is also likely to lessen the goodwill associated with Apple's App Store service and Apple products designed to utilize Apple's App Store service by associating Apple's App Store service with the inferior qualities of Amazon's service.

Ouch.

But Apple’s claim is probably already on thin ice. Back in July, District Court Judge Phyllis Hamilton, who is presiding over the case, said that Apple is struggling to provide “real evidence of actual confusion” over the two brands among consumers. Hamiton said she would probably deny Apple’s motion based on that lack of evidence, and that she’ll be reviewing the court findings before making her final decision.

It’s worth noting that the Kindle Fire, which is available right now, is seen to pose a significant threat to the tablet market – although maybe not to the iPad so much. But with its $199 price tag, it undercuts most of the market pretty deeply, and that makes it about $300 cheaper than the cheapest iPad. That might be something Apple is thinking about when it comes to these fights over app stores.