September 27, 2012, 4:08 AM — The generic use of the term "app store" is not false advertising, and a federal court in California should grant partial summary judgment for Amazon.com on Apple's false advertising claim, the Internet retailer said in a filing on Wednesday.
Apple filed in March, 2011 a complaint against Amazon.com, alleging that the Internet retailer's use of the name "Amazon Appstore for Android" violated its App Store trademark.
Amazon.com's motion asks for judgment on Apple's claim that Amazon's use of Appstore amounts to false advertising, which is the fifth cause of action in the case.
The word Appstore is part of the name of Amazon's store, and not a statement about the nature, characteristics, or qualities of Amazon's store, much less a false one, Amazon.com said in the filing before the U.S. District Court for the Northern District of California, Oakland division.
"What Apple is actually contending is that the use of "Appstore" may confuse consumers into believing that the Amazon Appstore is related to or sponsored by Apple," Amazon.com said. "Leaving for another day whether that is a reasonable contention, it is clearly one that sounds in trademark, not false advertising."
The name "Amazon Appstore for Android" appears on the homepage of Amazon.com., for example, but the function of such advertising is to direct viewers to, or identify to the consumer that he has arrived at the online store, the company said.
Amazon.com also cited instances when former Apple CEO Steve Jobs and his successor Tim Cook referred to competitors' stores for apps as app stores, including on investor calls. The use of the term app store to refer to stores selling apps is commonplace in the industry and not a false statement, it said in the filing.
The court denied Apple's motion for a preliminary injunction on Amazon.com's use of the term "Appstore" in the trademark infringement case in July last year.
The term App Store figures in a list of service marks on Apple's website. Service marks are used for services, in the way that trademarks are used for products. Apple's bid to register the mark in 2008 with the U.S. Patent and Trademark Office was opposed by Microsoft, which has asked the USPTO to hold the proceeding until final determination of the civil dispute between Apple and Amazon.com.