OAKLAND, Calif. (CN) - In characterizing the Amazon Appstore as false advertising, Apple posed "a far-reaching and novel theory that would turn trademark law on its head," Amazon said.
Apple had urged U.S. District Judge Phyllis Hamilton to deny the motion by saying that its false-advertising claim covers service characteristics, not affiliation or sponsorship. In other words, Apple says that Amazon Appstore users might expect the product to share the same qualities or characteristics as the Apple App Store.
But Amazon says there is no real evidence for this argument.
"Despite having commissioned four separate surveys, Apple has no data and can cite no anecdotal evidence that a single consumer knew that the Amazon Appstore had no connection to Apple but nevertheless assumed as a result of public use of the name that Amazon was implicitly and falsely suggesting that the nature or selection available of Android apps sold in the Amazon Appstore had the same qualities found in the Apple App Store," according to the Amazon reply authored by Arnold & Porter attorney Martin Glick.
The only issue before the court is whether the term "app store" is generic, and this claim belongs in the trademark arena, Amazon said.
"Apple's attempt to repackage a garden-variety trademark dispute as a false advertising issue should be rejected," according to the Amazon reply authored by Arnold & Porter attorney Martin Glick.
Earlier in the brief, Amazon said that Apple's "far-reaching and novel theory ... would turn trademark law on its head by allowing a firm to gain protection over a generic term by defining the term just as it chooses."
"Would every hardware store that opens but which lacks the quality and quantity of goods that Ace Hardware offers be guilty of false advertising if it called its store a 'hardware store,'" he asked.
The time for Apple "to have gathered and put forth hard evidence in support of their claims has come and gone and therefore summary judgment should be granted in favor of Amazon on the false advertising claim," according to Amazon.
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