Greg's bite: the Apple App Store trademark dispute
TweetFollow Us on Twitter

Greg's bite: the Apple App Store trademark dispute

By Greg Mills

Those of us who follow computer development have long taken for granted that where Apple leads, the industry soon follows. The history of innovation in the computing devices supports that generalization with countless examples.  

While Xerox supported very early implementations of the graphical user interface coupled with a mouse, the company didn't know what to do with the cool raw concept. Personal computers that would use that innovation were still hatching in a garage in northern California on another development track. Invention relies upon the industrial development that is required to support it.

There are three types of people in the world. One: those who conceive of absolutely novel technology. Two: those who know it when they see it. Three: those who can't grasp the notion of innovation when it is in their hands. Steve Jobs is one of the rare breed of people in category one, Bill Gates is in category two and Steve Ballmer is, unfortunately for Microsoft, clearly found in category three. In the not-so-perfect world for class one innovators, the money can flow to all three classes of technology developers if they have funds to advertise the innovation and implement some incarnation of the concept.  

Those tracks merged one day when Jobs, on a tour of a think tank project run by Xerox, took note of a cool new way to interact with computers graphically. The "idea seed" that became the Mac soon germinated in his brain. Within a short period of time the look and feel of a practical graphical user interface was born.  Apple licensed the basic technology from Xerox, then make it work with their new Apple computer.  Ironically, Jobs went to see Gates about outsourcing some software application development that would provide important new application to run on the new Apple OS and the new hardware Apple was developing.  

Being a #2 sort of innovator, Gates saw the potential and, despite presumably signing a nondisclosure agreement, soon wrote the graphical user interface into Windows. To Gates' credit, he did a better job of selling the technology than Apple did due to the general PC industry that was just taking root. The copy machines at Microsoft have never been turned off all these years later.  Apple sued over Microsoft for stealing the look and feel of the Mac interface. Years later, and a lot of money down the tubes, Jobs finally agreed to drop the legal action and Gates invested $250 million dollars in Apple, at a time they were in a deep funk.  
 
Patents, copyrights and trademarks are sometimes not as strong in protecting novel ideas as they ought to be. I personally have had good ideas stolen that were fully patented and protected as well as possible. The Federal Court system isn't as conducive to protecting lone inventors as it used to be. Patents simply allow you to sue an infringer in Federal Court. Congratulations, you now have the right to sue in Federal Court, but do you have the money to do that? Even in winning such an action, the damages are commonly not as much as one might think.  

The popular stories of inventors who became filthy rich by suing a big company are almost urban legions due to the rarity of that happening in the United States Federal Court system. Deep pockets normally win -- and the deeper your pocket, the more likely you are to win -- or at least settle in a way you can accept. Apple certainly has that advantage with an army of attorneys and billions of dollars in the bank.  

The category two and three folks run countless companies that have the financial resources to copy new things, but don't have the rare talent to imagine the undeveloped solution to undefined needs. Who would have thought they would ever "need" an iPad? Getting the right combination of features, software and technologies working to do the unexpected and delightful things is the hallmark of Apple.  

The patent fights brewing over the iOS touch interface technology seen on iPod, iPhone and iPad will be brutal. Apple will win some and lose some cases in the next five years. The period between filing a patent and getting the patent can vary from 2-5 years, sometimes even longer.  Like a glacier slowly moving down a mountain, it will get to the bottom some day. Android phones are particularly vulnerable to Apple's patent portfolio, and infringing companies may find that Apple isn't willing to license to them. Suddenly their touch phone line is at a dead end with damages to pay. 

The history lesson above sets the stage for a current legal battle going on now at the US Trademark Office. Apple filed a US trademark application some time ago for the term "App Store" and the blue App Store logo seen on the screen of iOS devices. No one can deny that Apple was the first to put an app store on the Internet and use the name "App Store." The wide copying of the name, arguably generic use of the term and the widely developed concept by others, have possibly diluted the right for Apple to claim exclusive rights to the name. That is, according to Microsoft.  

The use of that name has become "generic" according to Microsoft's recently filed objection to the US Trademark Office's approval of Apple's application for Trademark protection. To some extent, the very success of Apple in inventing, defining and naming new technologies that become the model for the pack of copycat companies bringing up the rear, weakens their case on trademark issues. I give Apple a 50%-50% chance of winning the app store trademark dispute. I bet Microsoft could trademark the term "blue screen of death" and no one would object, since that is clearly a Microsoft thing.

If you called the new music player from some unknown company a "Zune" type of music device, it would almost be considered an insult to the upstart company's new product. If you called that same new portable music player  an "iPod" sort of music player, not only would the name imply exactly what it does, but it does not degrade the product since the iPod sort of defines an expectation of excellence. Calling a new touch phone an "iPhone" sort of device wouldn't insult a company, as would calling it a "Kin" sort of phone. That would likely be just cause for a lawsuit.  The reputation of the Kin is so bad, it is sort of a parable of what all you can do wrong in such a phone.

The battle for protection of trademarks that have become almost a generic term due to common usage is well described by the Xerox saga. When copy machines first became popular and put carbon paper manufacturers into a death spiral, Xerox was far and away the most popular brand, at one time holding 100% of the US market. Soon, attorneys were saying to their secretaries, "Could you please Xerox a copy of this letter for the files."

While the word Xerox clearly implied the company by its very name, the "Bogarting" (appropriation without permission) of the word xerox as a verb, defined as "to copy something," became a trademark legal issue. The problem was based upon the great success by Xerox, who had pioneered the new category of plain paper copy machines. Soon, even dictionaries defined the word Xerox both as a company name or noun and also as a verb meaning "to copy a document".  

Litigation by Xerox against upstart competitors that tried to use their company name to describe photocopies made on non-Xerox copy machines was finally settled with Xerox winning by a hair. Today, most people refer to such copies as generically accurate "photocopies" or just copies, but some people still still make "xerox copies" on any brand of copier. That is similar to the descriptive usage of the term "App Store" that Apple is trying to stop. If the trademark was for "Apple Store" it would have included the name Apple, it would been much more likely winnable, but "app store" may be ruled generic.

Apple spends a fortune attempting to protect the magic they conjure up at their R&D facilities.  Utility patents, design patents, trademarks and copyrights all have a place in protecting intellectual property. The notion of ideas belonging to the person who thought of them, provided the idea is novel and useful, is the constitutional basis for the various legal ways of protecting inventions.  

The pack of "me, too" hounds running a year or more behind Apple is led by Microsoft. That is what makes this objection to Apple's trademark for "App Store" so outrageous. Their stellar success in developing new categories of devices is also what makes the breakout leader of the computer industry, Apple, so vulnerable to infringement.

That's Greg's bite for today.

(Greg Mills, is a Faux Artist in Kansas City. Formerly a new product R&D man for the paint sundry market, he holds 11 US patents. He's working on a solar energy startup, www.CottageIndustrySolar.com using a patent pending process of turning waste dual pane glass into thermal solar panels used to heat water. Greg writes for intellectual web sites and Mac related issues. See Greg's art web site at www.gregmills.info ; his email is gregmills@mac.com )

 

Community Search:
MacTech Search:

Software Updates via MacUpdate

Apple Pro Video Formats 2.0.2 - Updates...
Apple Pro Video Formats brings updates to Apple's professional-level codes for Final Cut Pro X, Motion 5, and Compressor 4. Version 2.0.2: Includes support for the following professional video codecs... Read more
Apple Final Cut Pro X 10.2.2 - Professio...
Apple Final Cut Pro X is a professional video editing solution.Completely redesigned from the ground up, Final Cut Pro adds extraordinary speed, quality, and flexibility to every part of the post-... Read more
Apple Compressor 4.2.1 - Adds power and...
Compressor adds power and flexibility to Final Cut Pro X export. Customize output settings, work faster with distributed encoding, and tap into a comprehensive set of delivery features. Powerful... Read more
Apple Motion 5.2.2 - Create and customiz...
Apple Motion is designed for video editors, Motion 5 lets you customize Final Cut Pro titles, transitions, and effects. Or create your own dazzling animations in 2D or 3D space, with real-time... Read more
A Better Finder Rename 10.00b1 - File, p...
A Better Finder Rename is the most complete renaming solution available on the market today. That's why, since 1996, tens of thousands of hobbyists, professionals and businesses depend on A Better... Read more
CrossOver 14.1.6 - Run Windows apps on y...
CrossOver can get your Windows productivity applications and PC games up and running on your Mac quickly and easily. CrossOver runs the Windows software that you need on Mac at home, in the office,... Read more
Printopia 2.1.14 - Share Mac printers wi...
Run Printopia on your Mac to share its printers to any capable iPhone, iPad or iPod Touch. Printopia will also add virtual printers, allowing you to save print-outs to your Mac and send to apps.... Read more
Google Drive 1.24 - File backup and shar...
Google Drive is a place where you can create, share, collaborate, and keep all of your stuff. Whether you're working with a friend on a joint research project, planning a wedding with your fiancé, or... Read more
Chromium 45.0.2454.85 - Fast and stable...
Chromium is an open-source browser project that aims to build a safer, faster, and more stable way for all Internet users to experience the web. Version 45.0.2454.85: Note: Does not contain the "... Read more
OmniFocus 2.2.5 - GTD task manager with...
OmniFocus helps you manage your tasks the way that you want, freeing you to focus your attention on the things that matter to you most. Capturing tasks and ideas is always a keyboard shortcut away in... Read more

Zen Brush 2 (Entertainment)
Zen Brush 2 1.0 Device: iOS Universal Category: Entertainment Price: $2.99, Version: 1.0 (iTunes) Description: Zen Brush 2 is a drawing app focused on the strong yet beautiful feel of the East Asian ink brush. | Read more »
NetNewsWire (News)
NetNewsWire 4.0.0 Device: iOS iPhone Category: News Price: $3.99, Version: 4.0.0 (iTunes) Description: Follow the Web NetNewsWire 4, completely written from the ground up for iPhone. NetNewsWire is the best way to keep up with the... | Read more »
Huzzah! Farming Simulator 16 Supports Cl...
As though it weren't difficult enough to resist the siren call of Farming Simulator 16, now it's been updated with cloud saves - so you can jump between devices without missing any of that precious crop-harvesting time. [Read more] | Read more »
Don't Starve: Pocket Edition Finall...
I've made no effort to hide my enjoyment of Don't Starve: Pocket Edition, but I will admit I was a tiny bit disappointed that it was only available for the iPad. Well nuts to that, because Klei Entertainment has made it universal! [Read more] | Read more »
Goat Simulator Wasn't Enough? Then...
If you just didn't get enough goat in Goat Simulator - or if you've been wanting to play a simulated MMO as a microwave - then you're in luck! Goat Simulator MMO Simulator is out now, and it's a game about simulated goats in simulated MMOs. Plus... | Read more »
You Can Play Madfinger Games' Unkil...
Madfinger Games - probably best known for the Dead Trigger series - has officially launched their newest zombie shooter (that isn't called Dead Trigger), named Unkilled. [Read more] | Read more »
KORG iELECTRIBE for iPhone (Music)
KORG iELECTRIBE for iPhone 1.0.1 Device: iOS iPhone Category: Music Price: $9.99, Version: 1.0.1 (iTunes) Description: ** 50% OFF Special Launch Sale - For a Limited Time **The ELECTRIBE reborn in an even smaller form A full-fledged... | Read more »
Toca Life: City Just Got a Bunch of New...
Toca Life: City is Toca Boca's most popular app (number 1 in 47 different countries, apparently), and it's just had an update that adds a bunch of new content. [Read more] | Read more »
My Country 3D is More About Cities than...
My Country 3D is an upcoming city builder from Game Insight that looks pretty decent - although the name seems a tad out of whack for a city builder. Ah well, it is what it is. [Read more] | Read more »
I am Bread (Games)
I am Bread 1.0 Device: iOS Universal Category: Games Price: $4.99, Version: 1.0 (iTunes) Description: ‘I am Bread’ is the latest quirky adventure from the creators of 'Surgeon Simulator', Bossa Studios. This isn't the best thing... | Read more »

Price Scanner via MacPrices.net

Near-Office Input Functionality Virtually Any...
Today Logitech introduced the Logitech K380 Multi-Device Bluetooth Keyboard and the Logitech M535 Bluetooth Mouse, giving users the freedom to work on any device, most anywhere. According to... Read more
College Student Deals: Additional $100 off Ma...
Take an additional $100 off all MacBooks and iMacs at Best Buy Online with their College Students Deals Savings, valid through September 4, 2015. Anyone with a valid .EDU email address can take... Read more
2.8GHz Mac mini available for $988, includes...
Adorama has the 2.8GHz Mac mini available for $988, $11 off MSRP, including a free copy of Apple’s 3-Year AppleCare Protection Plan. Shipping is free, and Adorama charges sales tax in NY & NJ... Read more
Will You Buy An iPad Pro? – The ‘Book Mystiqu...
It looks like we may not have to wait much longer to see what finally materializes as a new, larger-panel iPad (Pro/Plus?) Usually reliable Apple product prognosticator KGI Securities analyst Ming-... Read more
eFileCabinet Announces SMB Document Managemen...
Electronic document management (EDM) eFileCabinet, Inc., a hosted solutions provider for small to medium businesses, has announced that its SecureDrawer and eFileCabinet Online services will be... Read more
WaterField Designs Unveils American-Made, All...
San Francisco’s WaterField Designs today unveiled their all-leather Cozmo 2.0 — an elegant attach laptop bag with carefully-designed features to suit any business environment. The Cozmo 2.0 is... Read more
Apple’s 2015 Back to School promotion: Free B...
Purchase a new Mac or iPad at The Apple Store for Education and take up to $300 off MSRP. All teachers, students, and staff of any educational institution qualify for the discount. Shipping is free,... Read more
128GB MacBook Airs on sale for $100 off MSRP,...
B&H Photo has 11″ & 13″ MacBook Airs with 128GB SSDs on sale for $100 off MSRP. Shipping is free, and B&H charges NY sales tax only: - 11″ 1.6GHz/128GB MacBook Air: $799.99, $100 off MSRP... Read more
13-inch 2.5GHz MacBook Pro (refurbished) avai...
The Apple Store has Apple Certified Refurbished 13″ 2.5GHz MacBook Pros available for $829, or $270 off the cost of new models. Apple’s one-year warranty is standard, and shipping is free: - 13″ 2.... Read more
27-inch 3.2GHz iMac on sale for $1679, save $...
B&H Photo has the 27″ 3.2GHz iMac on sale for $1679.99 including free shipping plus NY sales tax only. Their price is $120 off MSRP. Read more

Jobs Board

*Apple* Retail - Multiple Positions (US) - A...
Sales Specialist - Retail Customer Service and Sales Transform Apple Store visitors into loyal Apple customers. When customers enter the store, you're also the Read more
Content Partner Engineer - *Apple* TV - App...
**Job Summary** The Apple TV team is looking for an experienced engineer with a passion for delivering first in class home entertainment solutions. The candidate will Read more
*Apple* Desktop Analyst - KDS Staffing (Unit...
…field and consistent professional recruiting achievement. Job Description: Title: Apple Desktop AnalystPosition Type: Full-time PermanentLocation: White Plains, NYHot Read more
*Apple* Retail - Multiple Customer Support P...
Job Description: Customer Support Specialist - Retail Customer Service and Sales Transform Apple Store visitors into loyal Apple customers. When customers enter the Read more
*Apple* Desktop Analyst - KDS Staffing (Unit...
…field and consistent professional recruiting achievement. Job Description: Title: Apple Desktop AnalystPosition Type: Full-time PermanentLocation: White Plains, NYHot Read more
All contents are Copyright 1984-2011 by Xplain Corporation. All rights reserved. Theme designed by Icreon.