Yesterday, in the Federal Court for the Northern District of California, Apple filed its response to a counterclaim (filed by Amazon) in its ongoing suit over Amazon's use of the word "Appstore" in its new Android... app store (what else am I supposed to call it, Apple? An app acquisition service?)

The counterclaim contained one of the single greatest premises for a trademark lawsuit I have ever seen (not that I've seen that many):

Apple denies that, based on their common meaning, the words “app store” together denote a store for apps. - Apple, Inc., 2011

Now, from a legal perspective, this makes a bit more sense given what Apple is arguing (not to say that the merits of their case don't look shaky.) From a common sense perspective, this is one of the most hilariously backward things I (and I'm sure you all) have ever read.

What is Apple's legal argument? Basically, Apple owns a trademark to the phrase "App Store." This trademark was published for opposition (in short, certified) back in January of 2010 - well before Amazon's Appstore came into existence, and was probably little more than an idea with a project codename. In order to assert infringement, Apple (I'm way simplifying) needs to show that Amazon's use of those words is similar enough to the trademarked phrase that they might cause "confusion" between the two companies' products.

This argument is pretty easy to make - Amazon cutting out the space between "app" and "store" is probably not enough of a differentiator, the names still sound exactly the same. But Amazon's argument is, in essence, "who cares?"

Amazon is saying that (I'm definitely paraphrasing here) it would be an act of monumental stupidity to allow Apple to control that phrase, and I tend to agree. By showing the phrase is in common use, that it is generic, and that Apple has made no previous attempts to protect it from would-be infringers, Amazon wants the court to invalidate Apple's trademark as unenforceable with a declaratory judgment. That is what Amazon is counterclaiming (suing back in the same lawsuit) against Apple for.

Given the way in which the media and the population at large toss around the phrase "app store" in connection with the word "app," Amazon's argument seems to make sense. Apple's, on the other hand, would require the judge to circumvent common sense, and declare that an "App Store" is not, in fact, a store for apps.

We'll see how this plays out.

Justia, Bloomberg