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Apple Insists Amazon Is Misusing App Store Mark

OAKLAND, Calif. (CN) - Amazon misleads consumers about the nature of its "Appstore," Apple claims, fighting the online retailer's motion for summary judgment in their trademark dispute.

The motion for summary judgment misconstrues the basis of Apple's false advertising claim, according to heavily redacted filing in the Northern District of California.

Amazon says that the term "app store" had become generic and that its use of the name "Amazon Appstore" would not confuse customers into thinking it was related to or sponsored by Apple.

But Apple says its false advertising claim covers service characteristics, not affiliation or sponsorship.

It claims that Amazon's use of the name "Appstore" deceptively causes consumers to believe that Amazon's service will have a comparable number and quality of applications available as Apple's App Store and will have the same ease of use.

"Apple claims that despite using the 'Appstore' in its name, Amazon's service does not possess the characteristics and qualities that the public has come to expect from the name App Store based on familiarity with Apple's service," according to the opposition brief, which had been filed under seal, but now somewhat public. "Amazon's use of the term 'Appstore' therefore misleads the public."

Apple also denied that the term "app store" has become too generic to be misleading.

"Amazon does not use the term 'app store' simply as a generic term to characterize a class or type of product; instead, Amazon uses 'Appstore' as the actual name of its specific service, emphasizing that it is a service name both by capitalizing the

term and by running 'app' and 'store' together into a single word," according to the filing authored by O'Melveny & Myers attorney David Eberhart.

Apple also pointed out that Amazon changed its store name from "Amazon Appstore for Android" to just "Amazon Appstore" after the Amazon's launch of the Kindle Fire, a tablet device that competes with Apple's iPad device.

The change "heightens the likelihood that consumers will mistakenly conclude that Amazon's service has the characteristics of the app store service," Eberhart wrote.

U.S. District Judge Phyllis Hamilton will hear the summary judgment issue on Oct. 31.

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