Apple is set to fail in its bid to stop Amazon from using the term ‘app store', if comments made by US district judge Phyllis Hamilton yesterday are anything to go by.
Apple has not demonstrated any "real evidence of actual confusion" among customers, Bloomberg quoted judge Hamilton as saying in court on Wednesday.
Although Hamilton said she would review court filings before issuing a final decision, Apple's motion is "probably" going to denied.
"I'm troubled by the showing that you've [Apple] made so far, but that's where you're likely not to prevail at this early juncture," Hamilton reportedly said.
Florian Mueller, software patent specialist, told V3.co.uk that he would not be surprised if Apple lost the case.
"Unfortunately, one of Apple's traits is to lay exclusive claim to too many features, concepts and names. I can't really see how any consumer would expect every 'app store' on this planet to be run by Apple and consumers aren't as clueless as Apple appears to claim they are," he said.
Apple originally sued Amazon for using the term ‘app store' in March, alleging that it would "confuse and mislead customers".
However, Amazon countered that the term ‘app store' had become generic, and it would not confuse customers by using it.
"Evidence of dictionary definitions, Apple's own generic use of ‘app' and ‘app store', and generic use by the general and industry press, competitors, and consumers themselves demonstrates that ‘app store' is a term that the relevant consuming public understands to denote a store for apps," Amazon said in its filing.
"Customers who have shopped for and purchased expensive mobile devices are, at the very minimum, sophisticated enough to know, if they choose to buy apps at all, that the apps they acquire must be compatible with the device they own."
Leading vendors HTC, Nokia, Sony Ericsson and Microsoft also filed an official complaint to the European Commission, in an attempt to block Apple from trade-marking the term ‘app store'.
They argued that the term ‘app store' was like the ‘toy store' or 'book store' and should be available for all vendors to use.
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