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

Sound Studio 4.8.11 - Robust audio recor...
Sound Studio lets you easily record and professionally edit audio on your Mac. Easily rip vinyls and digitize cassette tapes, or record lectures and voice memos. Prepare for live shows with live... Read more
BetterTouchTool 2.291 - Customize Multi-...
BetterTouchTool adds many new, fully customizable gestures to the Magic Mouse, Multi-Touch MacBook trackpad, and Magic Trackpad. These gestures are customizable: Magic Mouse: Pinch in / out (zoom... Read more
Carbon Copy Cloner 4.1.18 - Easy-to-use...
Carbon Copy Cloner backups are better than ordinary backups. Suppose the unthinkable happens while you're under deadline to finish a project: your Mac is unresponsive and all you hear is an ominous,... Read more
Hopper Disassembler 4.2.14- - Binary dis...
Hopper Disassembler is a binary disassembler, decompiler, and debugger for 32- and 64-bit executables. It will let you disassemble any binary you want, and provide you all the information about its... Read more
VOX 2.8.30 - Music player that supports...
VOX just sounds better! The beauty is in its simplicity, yet behind the minimal exterior lies a powerful music player with a ton of features and support for all audio formats you should ever need.... Read more
Default Folder X 5.1.6b3 - Enhances Open...
Default Folder X attaches a toolbar to the right side of the Open and Save dialogs in any OS X-native application. The toolbar gives you fast access to various folders and commands. You just click on... Read more
CleanMyMac 3.8.6 - $39.95
CleanMyMac makes space for the things you love. Sporting a range of ingenious new features, CleanMyMac lets you safely and intelligently scan and clean your entire system, delete large, unused files... Read more
Postbox 5.0.17 - Powerful and flexible e...
Postbox is a new email application that helps you organize your work life and get stuff done. It has all the elegance and simplicity of Apple Mail, but with more power and flexibility to manage even... Read more
Amazon Chime 4.6.5852 - Amazon-based com...
Amazon Chime is a communications service that transforms online meetings with a secure, easy-to-use application that you can trust. Amazon Chime works seamlessly across your devices so that you can... Read more
coconutBattery 3.6.3 - Displays info abo...
With coconutBattery you're always aware of your current battery health. It shows you live information about your battery such as how often it was charged and how is the current maximum capacity in... Read more

The best 2v2 card combos in Clash Royale
2v2 is making it's grand return toClash Royalequite soon. 2v2 has quickly become one of the game's most popular gameplay modes, though they still have yet to make it a permanent fixture in the game. 2v2 is exciting and adds some new flavor to... | Read more »
The best games we played this week - Aug...
Another busy week has come to a close. We played a lot of excellent games this week and now it's time to look back and reflect on some our favorites. Here are our picks for the week of August 18. [Read more] | Read more »
War Wings beginner's guide - how to...
War Wings is the newest project from well-established game maker Miniclip. It's a World War II aerial dogfighting game with loads of different airplane models to unlock and battle. The game offers plenty of single player and multiplayer action. We... | Read more »
How to win every 2v2 battle in Clash Roy...
2v2 is coming back to Clash Royale in a big way. Although it's only been available for temporary periods of time, 2v2 has seen a hugely positive fan response, with players clamoring for more team-based gameplay. Soon we'll get yet another taste of... | Read more »
Roll to Win with Game of Dice’s new upda...
Joycity’s hit Game of Dice gets a big new update this week, introducing new maps, mechanics, and even costumes. The update sets players loose on an exciting new map, The Cursed Tower, that allows folks to use special Runes mid-match. If you feel... | Read more »
Bottom of the 9th (Games)
Bottom of the 9th 1.0.1 Device: iOS iPhone Category: Games Price: $4.99, Version: 1.0.1 (iTunes) Description: Play the most exciting moment of baseball in this fast-paced dice and card game! | Read more »
The best apps for viewing the solar ecli...
If you somehow missed the news, many parts of the United States will be witness to a total solar eclipse on August 21 for the first time in over 90 years. It'll be possible to see the eclipse in at least some capacity throughout the continental U... | Read more »
The 5 best mobile survival games
Games like ARK: Survival Evolved and Conan Exiles have taken the world of gaming by storm. The market is now flooded with hardcore survival games that send players off into the game's world with nothing but maybe the clothes on their back. Never... | Read more »
Portal Walk (Games)
Portal Walk 1.0 Device: iOS Universal Category: Games Price: $1.99, Version: 1.0 (iTunes) Description: Portal Walk is adventure and relaxing platform game about Eugene. Eugene stuck between worlds and trying to find way back home.... | Read more »
Technobabylon (Games)
Technobabylon 1.0 Device: iOS Universal Category: Games Price: $4.99, Version: 1.0 (iTunes) Description: City of Newton, 2087. Genetic engineering is the norm, the addictive Trance has replaced almost any need for human interaction,... | Read more »

Price Scanner via MacPrices.net

Weekend sale: 13-inch MacBook Pros for up to...
Amazon has new 2017 13″ MacBook Pros on sale today for up to $200 off MSRP, each including free shipping: – 13″ 3.1GHz/256GB Space Gray MacBook Pro (MPXV2LL/A): $1599.99 $200 off MSRP – 13″ 3.1GHz/... Read more
Back To School With The Edge Desk All-in-one...
Back to school is just around the corner, and the ergonomically correct Edge Desk all-in-one portable kneeling desk is ideal for students living in dorms and small apartments, Edge Desk features:... Read more
Norton Core Secure Wi-Fi Router Now Available...
First introduced at the 2017 Consumer Electronics Show (CES), Norton Core, a secure, high-performance Wi-Fi router, fundamentally changed the concept of Wi-Fi routers by making security the primary... Read more
ViewSonic Adds New 27-inch 4K UHD Monitor to...
ViewSonic Corp. has introduced the VP2785-4K, a 27-inch 4K UHD (3840×2160) monitor that delivers precise and consistent color representation and performance to ensure incredible image quality. Built... Read more
Apple now offering Certified Refurbished 2017...
Apple is now offering Certified Refurbished 2017 27″ iMacs for up to $350 off original MSRP. Apple’s one-year warranty is standard, and shipping is free. The following models are available: – 27″ 3.... Read more
13-inch 2.3GHz MacBook Pros on sale for $100...
Amazon has the new 2017 13″ 2.3GHz MacBook Pros on sale today for $100 off MSRP, each including free shipping: – 13″ 2.3GHz/128GB Space Gray MacBook Pro (MPXQ2LL/A): $1199.99 $100 off MSRP – 13″ 2.... Read more
Clearance 2016 13-inch MacBook Airs available...
B&H Photo has clearance 2016 13″ MacBook Airs available for up to $200 off original MSRP. Shipping is free, and B&H charges NY & NJ sales tax only: – 13″ 1.6GHz/128GB MacBook Air (MMGF2LL... Read more
Clearance 21-inch and 27-inch iMacs available...
B&H Photo has clearance 21″ and 27″ Apple iMacs available for up to $500 off original MSRP, each including free shipping plus NY & NJ sales tax only: – 27″ 3.3GHz iMac 5K: $1799 $500 off... Read more
New iOS 11 Productivity Features Welcome But...
The iOS community is in late summer holding mode awaiting the September arrival of the iPhone 8 and iOS 11. iOS 11 public betas have been available for months — number six was released this week —... Read more
Samsung Electronics Launches New Portable SSD...
Samsung Electronics America, Inc. has announced the launch of Samsung Portable SSD T5 – its newest portable solid state drive (PSSD) that raises the bar for the performance of external memory... Read more

Jobs Board

Business Development Manager, *Apple* Pay -...
Job Summary Apple Pay is seeking an experienced Business Development professional to join the Apple Pay team to develop partnerships and strategic alliances with Read more
Information Systems Engineer, *Apple* Retai...
Job Summary Do you have a passion for the technology and systems that make Apple amazing? Are you interested in joining IS&T Retail on what they do best? This is an Read more
*Apple* Retail - Multiple Positions - Apple,...
Job Description: Sales Specialist - Retail Customer Service and Sales Transform Apple Store visitors into loyal Apple customers. When customers enter the store, Read more
Development Operations and Site Reliability E...
Development Operations and Site Reliability Engineer, Apple Payment Gateway Job Number: 57572631 Santa Clara Valley, California, United States Posted: Jul. 27, 2017 Read more
Frameworks Engineering Manager, *Apple* Wat...
Frameworks Engineering Manager, Apple Watch Job Number: 41632321 Santa Clara Valley, California, United States Posted: Jun. 15, 2017 Weekly Hours: 40.00 Job Summary Read more
All contents are Copyright 1984-2011 by Xplain Corporation. All rights reserved. Theme designed by Icreon.