In App Store vs. Appstore court clash, Apple runs into a skeptical judge

OAKLAND, California—Apple is a litigious company, most famously for its multi-billion dollar patent crusade against Samsung. The Cupertino company has a more quixotic legal battle going on against its competitors, however, that has also become a bit of a war against the English language. Since last year, Apple lawyers have been arguing that “App Store” is a trademarked phrase, and it has the right to stop others from using similar phrases. That includes Amazon, which was sued by Apple in March 2011, shortly after it opened the Amazon Appstore for Android.

Now, some of those issues are finally coming to a head in public. At a hearing today in an Oakland federal court, it became clear that while Apple may have a lot of fury and passion behind this lawsuit, it has run into trouble in the form of a very skeptical judge. US District Judge Phyllis Hamilton showed great doubt that Apple will be able to prove that consumers were confused or deceived by Amazon’s use of the word “Appstore.” At this point, it’s somewhat remarkable that the company hasn’t dropped this suit, since Hamilton indicated a year ago that she was unimpressed by Apple’s arguments and denied a preliminary injunction.

Still, Apple continues to claim its “App Store” trademark is infringed, and separately that Amazon’s promotion of its Appstore amounts to false advertising. Today’s hearing was only concerning the false advertising claim, which Amazon wants thrown out without a trial. Amazon also contends the phrase “app store” is generic and can’t be trademarked; that issue is currently scheduled to be tried by a jury in fall 2013.

Hamilton repeatedly questioned Apple’s lawyer, David Eberhart, about what kind of evidence he had that Amazon had deceived customers with its advertising.

“They [Amazon employees] admit they targeted Apple customers, because Apple set the benchmark for what consumers expected,” said Eberhart. “When you combine that with our evidence consumers associate the term ‘app store’ with Apple,” it’s enough evidence to warrant a trial.

“Everyone who uses a smartphone knows the difference between the Apple iOS system and the Android system,” responded Hamilton. “Where’s the confusion? There’s some suggestion [by Apple] that if Amazon is using the ‘Appstore’ term someone might think they have as many apps as Apple does. Well, why? And how, in fact, does that contribute to any deception on the part of Amazon?”

In response, Eberhart showed a page from Amazon’s store offering various smartphones. On the Android models, the page noted that software was available through the Amazon Appstore, while it noted that iPhones could get their software at the Apple App Store. “Consumers will see this kind of advertising and import their associations with Apple service. They understand what the App Store by Apple entails—hundreds of thousands of apps, and an ease of service unmatched by any others,” said Eberhart. “When a consumer sees something like this they will be deceived into thinking the Amazon store has the same types of qualities.”

Hamilton was even less impressed by the sheet of paper. “I don’t see it,” she said flatly. “I don’t look at this and make that determination. I just don’t understand the whole idea that people would misunderstand and blend these two different products and services.”

This litigation may not have enormous business impact. If anything, Apple’s vigorous litigation over “app store” phrase shows how strongly the company’s top brass must believe its brand to be anointed, deserving to beat competitors not only in the marketplace but in court as well. The company touted its “revolutionary” products and glowing press reviews to a jury trial 40 miles south of here, and may end up a billion dollars richer for it; in this suit, it’s essentially arguing that its App Store was so “pioneering” in 2008 that it needs a chunk of the English language as damages. After App Store, it seems, there’s no room in the world for mere “app stores.”