The War Over "App Store" Continues. Amazon Wins One of the Battles.

We have previously written about the contentious nature of the battle among Apple, Amazon, Microsoft and others in regard to the use of the term "App Store".  See here and here.

One of the salvos launched by Apple in its suit against Amazon involved a claim for false advertising.  Amazon moved for summary judgment on this claim and on the first business day of the new year, the United States District Court for the Northern District of California granted Amazon partial summary judgment.

The Court found "..Apple has failed to establish that Amazon made any false statement (express or implied) of fact that actually deceived or had the tendency to deceive a substantial segment of its audience. The mere use of “Appstore” by Amazon to designate a site for viewing and downloading/purchasing apps cannot be construed as a representation that the nature, characteristics, or quality of the Amazon Appstore is the same as that of the Apple APP STORE."

The Court held that "...if an advertisement is not false on its face (i.e., if there is no express or explicit false statement), the plaintiff must produce evidence, usually in the form of market research or consumer surveys,showing exactly what message was conveyed that was sufficient to constitute false advertising."  Apple failed to do so in this case.  Round one to Amazon.

Whole Bunch of Folks Gang Up On Apple To Try To Make "App Store" Available To Everybody.

We had written a couple of times (here and here) about the on-going battle among Apple, Microsoft and Amazon about the use of the term "App Store" as a trademark. 

Now, Microsoft, Nokia, Sony, HTC and Amazon have all registered opposition to Apple's exclusive use of such term in Europe.  Most of these companies announced yesterday that they have filed or will file opposition to Apple with the Office of Harmonization in the Internal Market, the body responsible for trademarks in the European Union.

Apple has already obtained a mark for App Store with the OHIM but this new gang of opponents are seeking to have this reversed on the grounds that such term is generic and has been used by everybody for a long time.

If Apple is able to hold on to the right of exclusive use of this mark, it would be huge.  The price of poker just went up.

Amazon.com Seeks To Form "App Store". Apple says: "Not So Fast!"

You will remember that Apple has applied to the USPTO for registration of the mark "APP STORE".  Dedicated readers of this blog were informed in January that Microsoft was opposing the issuance of such mark for Apple.

Amazon.com is now allegedly using the term "APP STORE" to solicit software developers for future software development and distribution.  Apple is having none of that and has filed suit in the Northern District of California alleging that such use by Amazon.com constitutes trademark infringement and several other heinous sins.  The suit asks for injunctive relief, damages, a constructive trust and attorneys' fees.

It is evident that "APP STORE" has become part of the popular lexicon and if one party is entitled to use it to the exclusion of others, it is a very valuable property.  The holy trinity (Apple, Microsoft and Amazon.com) will continue to duke it out over this issue and the birds will just get angrier.

Apple Seeks To Trademark "App Store". Microsoft says "Not So Fast".

Apple filed a trademark application for the term "App Store" in 2008.  Microsoft is opposing such application and has filed a motion for summary judgment with the USPTO alleging, among other things, that the term is generic.  As you know, if a term or word merely describes what it is, then it is generic and will usually not be granted trademark protection.  Examples of generic phrases that were turned down as marks are cited in Microsoft's brief in support of their summary judgment motion and include "The Computer Store", "Shoe Warehouse" and "Discount Auto Parts Warehouse".

 

Want to know what the odds are that the USPTO is apt to axe "App Store"?  There should be an app for that.

Another Pop Quiz: Apple, Pimple Popper Lite and Reading Your Wife's E-Mail. What Do These Have In Common?

Pop quiz, hotshot! (Using the same Speed reference in two posts.  You would think it's the only DVD we have.)

What is the common element among Apple, an app called Pimple Popper and a guy in Michigan that read his wife's e-mail?  The answer is that they have all been accused of violating computer security laws. 

Of course, there's more to the story.

First, let's visit the Michigan defendant.  The guy in question was in the throes of a divorce.  He had suspicions regarding his wife's monogamous instincts.  She kept her passwords in a notebook (dead tree variety) next to a computer that was shared by the couple.  He "hacked" her account by opening the notebook, finding her password and using it to access her gmail account.  Supposedly he found that she was in fact, having an affair with her second ex-husband.  Our hero is hubbie number 3.  Hubbie number 2 (the one now getting the action) had been convicted of beating the wife in question in front of her child (the progeny of hubbie number 1).  Still with me?  Our hero (hubbie number 3) was concerned about the possibility of continued abuse and took the information he found to hubbie number 1.  The wife, of course, found out, contacted the prosecuting attorney and hubbie number 3 (our hero) is now charged with violating the following statute:

"A person shall not intentionally and without authorization...Access a computer, computer system or computer network to acquire...or otherwise use the service of a computer program, computer, computer system or computer network."  Michigan Statute 752.795

The prosecutor's justification is that the defendant is a computer technician and he used his "skills" like a hacker to access the e-mail.  Violation of this statute in Michigan is a felony with a potential jail term of five years.

What of Apple and the Pimple Poppers?

This week, a number of defendants were sued in the Northern District of California.  The defendants include the makers of the iPhone apps: Testplus4, Pandora, Paper Toss, Weather Channel, Dictionary.com, Talking Tom Cat, Pimple Popper Lite and Pumpkin Maker and of course, Apple because the plaintiffs claim that Apple approves all of these apps through the inspection process of the App Store.  The suit further claims that all of these apps take advantage of the UDID (Uniform Device Identifier) and pass information like location, etc. along to advertisers without the user's knowledge.  Since the UDID is given to each device and can't be changed it works much better in this regard than cookies.

Along with a request for damages and other stuff, the plaintiffs claim that the defendants have violated a California statute (Penal Code 502[c]) that penalizes someone who "...knowingly accesses and without permission ... uses any data, computer, computer system or computer network in order to ... wrongfully control or obtain any money, property or data."

For those of you that are our Texas brethren, there is a Texas statute that makes it a Class B misdemeanor to: "...knowingly access a computer, computer network, or computer system without the effective consent of the owner" (Penal Code 33.02) if the amount of money involved is less than $1,500 or nothing at all.  The offense gets progressively worse if bigger amounts of money are involved and goes to a first degree felony if the amount exceeds $200,000.

So, we have iPhone apps, the big Apple mothership itself and a jilted husband ostensibly seeking to protect a child that could all be possibly implicated under any of these statutes. 

Too much?  None of this is final yet.  Stay tuned.

The Software Patent Lawsuit to End .....Software Patents?

Recently, Paul Allen (co-founder of Microsoft and worth roughly the GDP of Jamaica) filed a patent infringement lawsuit against most of Silicon Valley.  The Defendant's list reads like a who's who of modern technology giants:  Apple, Google, Facebook, eBay, AOL, Netflix, Yahoo, Office Depot, Office Max, Staples, You Tube (not listed: Microsoft).

The patents at issue extend back to the late 90s when Allen's now defunct company, Interval Research, was granted a number of patents dealing with e-commerce and search process.  In fact, it was so long ago that Google wasn't even in existence when some of the patents were applied for. This is obviously a big deal for Silicon Valley companies as they struggle to work within the current patent system.  The sheer number of defendants and the issues at stake has lead some to surmise that this could be the tipping point for software patents as a whole.  Earlier this year, many were guessing/hoping that software patents would finally be invalidated in by the Supreme Court in the recent case, In Re Bilski, but that didn't happen.  Obviously, an entire industry cannot constantly be fighting out their innovations in the court room because in the long run, it only ends up hurting consumers and stifling progress.  So we'll see if this is actually a turning point in our current patent system or just another addition to our patent thicket.  Stay tuned. 

Apple Facing Potential FTC Inquiry

Here at ATLB, we have previously discussed Apple restricting the programming tools that could be used to create Apps for the iPhone and the iPad.  Most notably, Flash based programs were restricted which sparked a PR war between Apple and Adobe.  Now it appears that the FTC is seriously considering whether to look into these potentially anti-competitive practices.  

The Federal Trade Commission and the US Justice Department, which enforce US antitrust law, are each looking into Apple’s restrictions. No decision has been made to move forward with an official investigation.

“What they’re [Apple] doing is clearly anticompetitive ... They want one superhighway and they’re the tollkeeper on that superhighway,” said David Balto, a former policy director for the commission.

It should be noted that only an inquiry has been mentioned as opposed to a full-scale investigation.  There will still need to be hearings and further discussion before an investigation is launched.  But at the very least, this will provide Adobe with ammunition in its ever-escalating PR battle against Apple and Steve Jobs. 

Adobe-Apple Feud Frustrates App Development

Apple has recently changed their license agreement to exclude Flash language programs and Flash to iPhone Compilers. This has created a great deal of buzz in the app development world. The i-Phone Developer Program License Agreement set out by Apple was modified to exclude such Flash related programs when the agreement was edited to include:

3.3.1 — Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs. Applications must be originally written in Objective-C, C, C++, or JavaScript as executed by the iPhone OS WebKit engine, and only code written in C, C++, and Objective-C may compile and directly link against the Documented APIs (e.g., Applications that link to Documented APIs through an intermediary translation or compatibility layer or tool are prohibited).

This added language has caused an uproar in the app development community. As John Gruber, at Daring Fireball explains,“… cross compilers, such as the Flash to iPhone Compiler in Adobe’s upcoming Flash Professional CS5 release, are prohibited."

Depending on your involvement with apps, this ultimately means that all the apps that use Flash or intend to use Flash will either be discontinued or changed.

Most of the apps using Flash are video game apps, which is a market that is growing quite rapidly. According to CNet news, the portable gaming market is around a 10 Billion Dollar industry and Apple made $500 million off it last year - up significantly from $115 million in 2008. The list of affected apps is not insubstantial and includes some of the top selling apps at iTunes such as Monopoly, Simpsons Arcade, Skeeball, and it is even rumored that Tap Tap Revolution was partially written in the violating Lua Programming language (click here for entire list). It is unknown how much revenue these particular games bring in, but it is a bold move for Apple to potentially hinder their growth in this market in order to exclude such programming language.

Steve Jobs’ response to this change is relayed to the public in the Tao Effect blog, stating “We’ve been there before, and intermediate layers between the platform and the developer ultimately produces sub-standard apps and hinders the progress of the platform.” However, as the author also continues, what will Apple do with the now restricted apps already in existence utilizingMonoTouchLua,NimbleKit or Unity3D (non-Apple sanctioned tools that allow developers to code for the iPhone in non-C languages). Will they continue selling these apps? Will they be forced to alter their code?

As some of you know, Adobe and Apple have not been on good terms for awhile, and this is just the latest in the battle between the two companies. Although a harsh change in contract language, some developers and bloggers, such as, Pascal-Emmanuel Groby with the Business Insider are curious if the change is illegal? According to sjvn at IT World, in his article Adobe vs. Apple is going to get uglier, a lawsuit is already in the works. No mention to what the actual claims would be, the folks at Geek-news and IT World believe Apple would likely be facing some anti-trust claims. With such deep pockets on both sides, a clear judgment would likely take a serious amount of time to resolve. As a result, it will be very interesting to see how developers react initially. With several Austinites and Austin-based companies focusing on app development, our local tech community will undoubtedly have an impact on the language app developers continue to use.