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Apple claims Microsoft is “clueless as usual” as they defend their attempt to trademark the phrase “App Store”.The company, that will tomorrow launch a new Apple iPad 2 along with several new applications, says that Microsoft has failed to prove that the term should be left open for use by other companies wanting to compete in the mobile application marketplace.

It’s the latest broadside in a battle over rights to one of the most commonly used phrases of the booming mobile world. In its filing this week, Apple argues that ‘app store’ isn’t a generic term, and points to the competitive landscape as evidence that rival mobile marketplaces have valid alternatives available to them. Apple’s filing quotes testimony from a linguistics expert, Robert Leonard, whose examination of the case concluded that “the predominant usage of the term APP STORE is as a proper noun to refer to Apple’s online application marketplace.”

In a none-too-subtle dig at its longtime rival, Apple points in part to Microsoft’s own defense of one of its most valuable trademarks, Windows.

Microsoft has argued in one of their filings that any “secondary meaning or fame Apple has in ‘App Store’ is de facto secondary meaning that cannot convert the generic term ‘app store’ into a protectable trademark.”

Among other pieces of evidence, the Microsoft filing noted that the media and even Apple CEO Steve Jobs have used the phrase generically. Jobs, for example, once referred in an interview to a new crop of Android “app stores.”

The phenomenal popularity of Apple’s online software marketplace has prompted a number of competitors to offer their own marketplaces. In fact, Microsoft, Google, Nokia, Research in Motion (Blackberry), Sprint, Verizon and other major companies now offer an online software marketplace for mobile operating systems that compete with Apple’s mobile operating system (in fact, Apple’s competitors hold a larger market share than Apple in respect of mobile operating systems). As Microsoft itself acknowledges, these competitors have found ways of branding and describing their own online software marketplace without using the term APP STORE. For example, Microsoft itself uses the term MARKETPLACE to refer to its service and uses the descriptor “virtual store for apps.”

 

In limited instances third parties have made improper use of the term APP STORE. In response, Apple has contacted those parties and requested that they cease and desist from further use of the mark. In most every instance, the entities contacted by Apple agreed to cease use of Apple’s APP STORE mark. Those few which refused to cease use of Apple’s APP STORE mark made reference to Microsoft’s challenge of Apple’s rights in its APP STORE mark, which has received widespread attention in the press, and have refused to cease using APP STORE pending a ruling in this proceeding.

The case is now in the hands of the USPTO Trademark Trial and Appeal Board, which will decide whether to grant Microsoft’s motion for summary judgment against Apple’s application, or allow the case to proceed to trial.

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