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. 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. 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 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 will continue to duke it out over this issue and the birds will just get angrier.

Your Government And Courts At Work.

A few things for your consideration:

1.  The White House's proposed budget includes the authority for the USPTO to charge a surcharge on patent applications.  The proposed budget would provide $2.7 billion for fiscal 2012 with one of the stated objectives to reduce the backlog of 720,000+ applications.

2.  By Executive Order 13565 of February 8, 2011, the White House established two I.P. committees.  One is the Senior Intellectual Property Enforcement Advisory Committee, which will facilitate the formation and implementation of each Joint Strategic Plan, which will be be developed by the other committee established, the Intellectual Property Enforcement Advisory Committee.  As is evidenced by their names (i.e. Senior and not Senior) the Senior Advisory Committee will be comprised of cabinet level members or their designees and the Enforcement Advisory Committee will be comprised of representatives from the USPTO, DOJ, Department of Commerce and others.

3.  Health and Human Services through its Office for Civil Rights has assessed its first ever civil penalty for violation of HIPAA.  The penalty was $4.3 million against Cignet Health of Prince George’s County, Md.  Cignet failed or refused to provide health records to at least 41 patients and then apparently stonewalled the patients and requests from the Office for Civil Rights to the extent that the Office for Civil Rights obtained a default judgment against them.  Cignet also apparently was uncooperative in the investigation into this affair.  The penalty was $1.3 million for failure to provide access to the records and $3.0 million for being uncooperative.

4.  Microsoft was successful in getting a patent infringement suit originally filed in the Eastern District of Texas transferred to the Western District of Washington on the grounds of forum non conveniens.  For some strange reason, there are a lot of patent infringement suits and class actions filed in the Eastern District of Texas.  The plaintiff here, Allvoice, was an U.K. company with an office in the Eastern District of Texas but with no employees there or anywhere in the U.S.  Calls there were transferred to their office in the U..K.  Allvoice was incorporated in Texas but had done so 16 days before the suit was filed.  Forum shop much?  The Circuit Court of Appeals issued a writ of mandamus compelling transfer to Microsoft's home court even though Microsoft had also petitioned to move the case the Southern District of Texas.


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.

Stuxnet - Malware That James Bond Would Be Proud Of?

UPDATE September 30, 2010:  Further to the story below, the New York Times reports that experts deconstructing the Stuxnet virus have found a file named "Myrtus", which is supposedly the Hebrew word for Esther's name (Hadassah) before she was selected as queen.  Esther is a book in the Hebrew Bible (Old Testament) in which a plot by the leaders of Persia (now known as Iran) to destroy the Jews is foiled by Esther, which then allowed the Jews to kill about 75,000 Persians in reprisal.  The naming of this file could be signficant as a calling card or could just be an attempt to shift blame (or could just be the name of someone's mother or cat). 

This sounds more and more like Tom Clancy is making this up.

ORIGINAL POST:  As our many readers will surely recall, this blog was all over the Stuxnet story when it broke a few months ago.  For those that don't remember, Stuxnet is a malware that targets commercial systems (primarily power plants) by attacking a vulnerability in a Siemen's system using a particular Microsoft operating system.  It was originally thought to be delivered via a USB thumb drive but experts now say it is in the wild and can be delivered in different ways.  Also, it was originally thought to be used just to copy plans for the power plants but now it is surmised that it could be used to sabotage such plants.  Experts that have now broken the code for the malware see a sophistication, knowledge and complexity that is not commonly available to any one or more non-affiliated hackers.  This has lead the same experts to speculate (emphasis on the speculative nature as there is no hard evidence, yet) that this was probably the actions of a nation state.

Experts to whom this blog has spoken have stated that because Stuxnet was first discovered in Iran and most of the activity is still in Iran and specifically at one of their nuclear power plants (one that has been mysteriously delayed in coming on line), it probably came from one of the nations not particularly happy about Iran having nuclear power.  Likely suspects are (you guessed it) the CIA or maybe even Mossad.

Of course, nobody really knows and maybe never will.  However, the lesson to be learned from this is that malware (whether state sponsored or otherwise) is rapidly becoming more sophisticated and could pose much greater risks in the future.

Cue the 007 music.

Texas Attorney General Investigates Google's Alleged Anti-Trust Activity

On September 3, Search Engine Land reported, and Google confirmed that the Texas Attorney General, Greg Abbott, inquired about and is currently investigating potential anti-trust activity by Google. It was reported Greg Abbott's office declined to answer any questions, and now everyone is just speculating on what the outcome will be. Well, I'm no better. 

This is not the first anti-trust inquiry Google has faced, and it likely won't be the last. According to Experian Hitwise, Google accounts for 71% of searches in the United States, and it's no surprise to anyone when you've got that kind of market share, you've got a lot of bulls-eyes on your back, as well as a lot of government officials making sure you don't go all anti-trusty on the rest of the market. Google has been in this position for sometime, and I'm sure I'm missing a few, but here are some of the Google antitrust highlights over the last few years:

There were other activities involving the FTC, but for purposes of brevity let's pretend I've included the most relevant instances. Since a majority of internet users search using Google, any company  wanting to be found spends a lot of money utilizing the algorithms set out by the internet giant. Take a look at number of new companies providing SEO functions. When large expenditures are dedicated to this task and lost when the algorithm is altered, you can imagine the frustration and the likelihood of damages that could be involved. You've got angry companies who wonder why these changes had to happen. This is a valid concern, right?

On the flip side, doesn't Google need to update its algorithms? Understandably, Google has to change with the technology (new programing languages, bots, etc.) in order to provide the best search engine for it's users. It doesn't want to lose any of that 71%. However, if Google competitors begin to lose page rank status because of these changes questions begin to arise to the reasoning behind the changes. 

According to Google's business model, "You can make money without being evil," and I have a tendency to believe them. It might be because of all the products I use, but they seem to do a great job of creating well thought out systems that help my productivity. If changes to the search engine are found to be anticompetitive because someone loses their page rank, is that a victory? Does the public benefit? Does holding back the smartest person in the class really help competition and the end-user?

On a similar note, factor in that several of these companies have ties to Microsoft, and you've got a mixed bag of issues. Microsoft owns Ciao (as mentioned above), and involved their lawyers with assistance in proper representation. Then in February of 2010, Microsoft General Counsel, Dave Heiner, voiced his opinions on the matter, discussing that it's not just Microsoft pointing fingers, but several companies and groups raise interesting questions regarding Google's potentially anticompetitive nature. 

As I mentioned, I like to think Google isn't evil, but what if I and my fellow Googlers are wrong? What if the reverse is true and Google alters algorithms when another search company starts to gain market share? It will be interesting to see how these investigations progress and what kind of case will develop. Without addressing the validity of anti-trust laws, it's a touchy area when determining whether changes in the Google algorithms had a basis in creating a better search engine or were used a vehicle to keep any competitors out of the market. What were the motives of any changes? Were there "better" results for the searching capabilities of Google? Who decides what those "better" capabilities should be?

As a final note, back in March of last year, Eric Clemons, wrote a guest piece for TechCrunch and gave his opinion of "What an anti-trust suit against Google would look like." The article provides great insight on the basics of how these lawsuits work and is a good read if you want to see how this suit might potentially proceed. 


More Sophisticated Spyware Hits Utility Systems - "Stuxnet" Gone Wild

Cyber security experts are scrambling to assess the past effects and the potential of a recently detected malware that has targeted utility systems primarily in the Middle East (beginning in Iran) and the United States. Microsoft has named the Trojan intruder “Stuxnet”.

On a very basic level, here is what Stuxnet does:
1. So far, it has targeted a Siemens system (SCADA) used primarily in the operation and control of electric power plants;
2. It has been carried on USB sticks that, when attached to a computer, automatically executes without any further action by a user, even if the AutoRun function is disabled;
3. The Trojan then seeks out and copies certain database information, including power plant designs;
4. Stuxnet exploits a flaw in the shortcut links files in Windows.

Microsoft has issued a work around that essentially turns off the shortcut function and changes the shortcut icons appearance on the screen.

So, if this only targets utility companies, unless you are a utility company or have one as a client, why should you care? Experts surmise that this was created to carry out industrial espionage but the same technique can be used for other targets. It could be used to target other trade secrets, personal financial information, medical records, etc.

We talked to a local security expert and there are reports that Stuxnet or variants are “in the wild” and could be delivered by a manner other than USB sticks via networks and remote web servers.

McAfee alleges that it has a defense against Stuxnet as does Symantec. As we noted in earlier posts (see here and here), these are examples of blacklisting. CoreTrace has demonstrated effectiveness against the intruder by using the whitelisting capabilities of its product Bouncer. See the YouTube video here:

This attack seems to be much more targeted and much more sophisticated that most of the prior threats and may herald a new age of malware menace.

So, it’s a dangerous cyber world out there. Use protection.

Microsoft sues for Patent Infringement


Ina Fried, from, reported this week that Microsoft filed a patent infringement case against is, among other things, a customer relations management (CRM) software company that provides its product through the cloud. Microsoft is no stranger to patent lawsuits. In fact, they were just ordered to pay $200 Million to Virnet X in a patent infringement lawsuit regarding VPN technology. However, the peculiar thing about the lawsuit filed against was that it was Microsoft doing the suing. Microsoft has only filed 4 suits against competitors. Most infringement issues involving Microsoft commonly end up in some type of license agreement with the alleged infringer. (See HTC) From this Microsoft receives damages and then licenses their technology to the competitor. However, there appears to be more uncertainty surrounding this case.


It is no secret Microsoft is one of the more established players in the IT world. However, Microsoft, along with everyone else has been losing ground to Google. Microsoft and Google are competitors in e-mail (Gmail/Hotmail), browsers (chrome/IE), search engines (Bing/Google), electronic documents (Office/Google docs), and soon in operating systems (Windows/Chrome OS). Microsoft is attempting to chase Google into the cloud computing realm, as evidenced by the direction Office 2010 and other products are trending. The lawsuit against might be just another way to gain ground. One of the benefits of being in the game as long as Microsoft has is that they have ownership to some of the foundational technology we all use today. Take a look at the subject matter referenced in these patents:


Ø       7,251,653: Method and system for mapping between logical data and physical data

Ø       5,742,768: System and method for providing and displaying a web page having an embedded menu

Ø       5,644,737: Method and system for stacking toolbars in a computer display

Ø       6,263,352: Automated web site creation using template driven generation of active server page applications

Ø       6,542,164: Timing and velocity control for displaying graphical information

Ø       6,281,879: Timing and velocity control for displaying graphical information (the 164 patent above looks to just be a continuation of this patent)

Ø       5,845,077: Method and system for identifying and obtaining computer software from a remote computer

Ø       5,941,947: System and method for controlling access to data entities in a computer network


All of these patent subjects are associated with cloud computing factors. This is no surprise since is run from the cloud, but it does question what Microsoft will do next? Will they pursue other companies that infringe on the broad patents? Are they trying to get enforcement out of their patents before the Supreme Court returns an opinion on In re Bilski? Are they just trying to get another license agreement?