Apple vs Microsoft: the 'App Store' debate rumbles on

Apple vs Microsoft: the 'App Store' debate rumbles onApp Store or app store? The devil is very much in the detail, as Microsoft and Apple's spat over the fruit-flavoured firm's attempts to trademark the term App Store proves.

Now things have taken a new turn. Fresh from Microsoft's claim that “app store” is a generic term so can't be trademarked, Apple has taken the bait and returned the obvious response: so, it says, is “windows”.

Just to bring you up to speed, the whole affair kicked off a couple of months ago when Apple filed a motion to trademark “app store” is its a proprietary term, on the basis that the App Store created the concept and that other proprietary stores selling apps now exist using different names anyway.

But Microsoft was having none of it, filing its own motion objecting to Apple's argument, on the grounds that the term “app store” refers to nothing more than a store that sells apps – a definition that all examples of such stores (including Apple's) fall under.

It appeared to score a crucial point when it evoked comments made by Steve Jobs himself in an interview last year, when the Apple boss used the term in a generic sense several times when referring to Android.

But Apple isn't letting that derail its argument, and has filed new documents that deliver a withering assessment of Microsoft's credentials for judging just what is generic and what isn't.

Here are the best bits:

“Having itself faced a decades-long genericness challenge to its claimed Windows mark, Microsoft should be well aware that the focus in evaluating genericness is on the mark as a whole and requires a fact-intensive assessment of the primary significance of the term to a substantial majority of the relevant public,” the document reads.

“Yet, Microsoft, missing the forest for the trees, does not base its motion on a comprehensive evaluation of how the relevant public understands the term App Store as a whole. What it offers instead are out-of-context and misleading snippets of material printed by its outside counsel from the internet and allegations regarding how the public allegedly interprets the constituent parts of the term App Store, i.e., ‘app’ and ‘store.’

“Recognising the many issues of fact raised by its motion and trying to sidestep them, Microsoft also concocts the argument that all ‘store’ formative marks such as App Store should be per se generic. Microsoft’s proofs, and its attempt to create a new genericness standard from whole cloth, do not warrant an award of summary judgment in Microsoft’s favour.”

Yeah, take that, Redmond – or some more pedantic legally appropriate equivalent. In the end, the whole affair probably doesn't matter, but let's be honest – we all enjoy seeing big companies have a go at each other.

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