(Updates with trial date in third paragraph.)

Jan. 2 (Bloomberg) -- Amazon.com Inc. won dismissal of Apple Inc.’s claim that the online retailer’s use of the term “app store” for Android device software is false advertising.

U.S. District Judge Phyllis Hamilton in Oakland, California, today granted Amazon’s request to throw out one claim in Apple’s lawsuit alleging trademark infringement and unfair competition over the Amazon Appstore for Android, a service begun in March that sells applications for the Kindle Fire and devices running Google Inc.’s Android software.

Apple is seeking a court order to block Amazon from using the term. Amazon has argued the words are a generic term that Apple doesn’t have exclusive rights to use. A trial is scheduled for Aug. 19.

The iPhone maker, which started its APP STORE in 2008, said Amazon’s use of the term was false advertising because it deceives customers into believing that Amazon’s service has the qualities of Apple’s applications store, Hamilton said in her ruling. Apple maintained this could divert its revenue to Amazon.

Apple hasn’t shown that Amazon’s advertising attempt to mimic Apple’s, failed to show that Amazon made any false statement, and presented no evidence that customers were misled by Amazon’s use of the term, Hamilton said.

Judge’s Finding

“The court finds no support for the proposition that Amazon has expressly or impliedly communicated that its Appstore for Android possesses the characteristics and qualities that the public has come to expect from the Apple APP Store and/or Apple products,” Hamilton said.

She ruled only on Amazon’s request to eliminate the false advertising claim.

In 2008, Apple applied to the U.S. Patent and Trademark office to register APP STORE, according to the order. Microsoft Corp. opposed the registration, saying the term is generic. Last year the Trademark Trials and Appeals Board put an opposition proceeding on hold pending the outcome of the lawsuit before Hamilton.

Kristin Huguet, a spokeswoman for Cupertino, California- based Apple, declined to comment on the ruling. A call to Seattle-based Amazon’s media line seeking comment on the ruling wasn’t immediately returned.

The case is Apple Inc. v. Amazon.com Inc., 11-01327, U.S. District Court, Northern District of California (Oakland).





--Editors: Charles Carter, Andrew Dunn

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.



