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Greg’s bite: the Apple App Store trademark dispute

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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 )

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