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Apple's App Store is a huge business. But Microsoft contents that the trademarked store name is illegal. Apple fires back, arguing Microsoft's "Windows" trademark is illegal.  (Source: Geek.com)
Cupertino's top tech firm fires back in Microsoft's trademark suit

When Apple trademarked the term "App Store" nobody thought much of it.  Smartphone applications at the time were a niche market either highly targeted at small groups of professionals, or were tools used by handset makers/carriers to sell their devices.  In months Apple transformed the mobile applications industry into a huge market that lured personal computer developers into the world of ultra-mobile computing.  All of a sudden, the term "App Store" was a household name.

Now "App Store" is a somewhat generic term.  Google, the market's biggest player has long remained silent on this issue.  But in recent months Microsoft, in the midst of a major smartphone push, decided to press the point, filing suit against Apple in January, claiming the U.S. Patent and Trademark Office (USPTO) erred when granting Apple "ownership" of the term "App Store".

Now Apple's legal team has fired back in a response to Microsoft's claims.  They argue that the diversity of smartphone OS maker's various store names offers some proof that the term "App Store" is not overly generic (Google uses "Android Marketplace", Windows uses "Windows Phone Marketplace", and Palm uses the term "Palm App Catalog").  They say that Microsoft fails to prove that the term "App Store" is overly generic.

Further, they level a stinging accusation back at Microsoft.  They argue that Microsoft's ownership of the operating system trademark "Windows" is illegal.

Apple legal writes [PDF]:

Having itself faced a decades-long genericness challenge to its claimed WINDOWS mark, Microsoft should be well aware that the focus in evaluating genericness is on the mark as a whole and requires a fact-intensive assessment of the primary significance of the term to a substantial majority of the relevant public. Yet, Microsoft, missing the forest for the trees, does not base its motion on a comprehensive evaluation of how the relevant public understands the term APP STORE as a whole.

The San Jose federal court where the case was filed must now rule whether to grant a motion (instant decision) or put the case before a jury trial (prolonged court process).

Ultimately both Apple and Microsoft raise valid points.  On the one hand, the term "App Store" (with no company name included) does seem overly generic.

However, the case merely serves to illustrate the broader issue of the USPTO increasingly granting ownership of increasingly broad and generic trademark names to large companies.  In this respect, Microsoft's claims are certainly a case of the pot calling the kettle black.  Operating systems have used windows-based GUIs since before the days of Windows, and every major personal computer OS today uses a windows-driven interface.  



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App Store is generic
By MrTeal on 3/2/2011 10:53:47 AM , Rating: 4
Obviously so. What do you buy at the App Store? Apps. If someone new to a smartphone were looking to buy an app, they would probably first think of going to some sort of store for those apps. The abbreviation App was used form application software long before Apple repurposed it to mean iOS App.

Windows is entirely different. Yes, windows is a common word, but Windows in relation to computer operating systems is pretty specific. It's not like Microsoft named their OS "Operating System" and then starting suing people who used the term.

As usual, Apple if full of crap here.




RE: App Store is generic
By JasonMick (blog) on 3/2/2011 11:04:25 AM , Rating: 1
quote:
Obviously so. What do you buy at the App Store? Apps. If someone new to a smartphone were looking to buy an app, they would probably first think of going to some sort of store for those apps. The abbreviation App was used form application software long before Apple repurposed it to mean iOS App.


Agree!

quote:
Windows is entirely different. Yes, windows is a common word, but Windows in relation to computer operating systems is pretty specific. It's not like Microsoft named their OS "Operating System" and then starting suing people who used the term.


Disagree.

EVERY major operating system uses windows. This is a generic term since the 80s for panes in a GUI. Linux users open GUI windows, OS X users open windows, Windows users open windows.

The trademark is ultra generic, given that virtually every OS in its target market fits the description in the name.

Like it or not, this seems inappropriate, if anyone cares to complain.

It'd be equally inappropriate if Microsoft called their OS "Buttons" or "Menus" or "Icons" or some other fundamental aspect of the GUI...


RE: App Store is generic
By NellyFromMA on 3/2/2011 11:11:50 AM , Rating: 1
I slightly disagree with your second point. Before Windows 3.1 or even 95 to a slightly lesser extent, a "window" as a GUI element surely existed, but it was VERY niche.

Apps have existed for a long time before Apple trademarked App Store.

I realize this is in some ways a minor difference, but I think its important enough of a starting point to analyzing the differences and the relevance of those differences. I think you could pick it apart a little further personally. Arguably, Microsoft could have coined a "window" and an "app" as they arguably laid the foundation for both terms really.

And yes, I realize Windows wasn't the first OS to use a "window". But, it may as well have been.


RE: App Store is generic
By JasonMick (blog) on 3/2/2011 11:25:58 AM , Rating: 2
quote:
I slightly disagree with your second point. Before Windows 3.1 or even 95 to a slightly lesser extent, a "window" as a GUI element surely existed, but it was VERY niche.

Apps have existed for a long time before Apple trademarked App Store.


Actually the situation is highly analogous. In both cases there were examples of the technology before, but they weren't in the mainstream.

Before the App Store maybe a few million people in the U.S. used apps on a regular basis. The App Store launched the movement that led to as many as a hundred million people using apps on a regular basis (be it on iPhones, Android phones, Windows Phones, etc.).

Now I'm no fan of Apple's policies, particularly moral policing, but I think it's important to recognize the reality of its role in the history of the smart phone industry.

Likewise, I'd say you're absolutely right about Windows, and that is why it is a very similar situation. Before Windows, a few million Xerox/Visicorp/Apple users might have used a GUI with windows in it.

Microsoft popularized the concept to the masses, though, with Windows.

I'm sure my original comment was downrated for seemingly agreeing with Apple and being critical of something Microsoft did.

But actually, I'm critical of what both companies are doing here. Neither trademark is appropriate as BOTH are overly generic.

I think it's very important to avoid practicing a double standard here, just because by and large we appreciate one company's policies more and another's less.


RE: App Store is generic
By Iaiken on 3/2/2011 11:52:40 AM , Rating: 4
quote:
Before the App Store maybe a few million people in the U.S. used apps on a regular basis. The App Store launched the movement that led to as many as a hundred million people using apps on a regular basis (be it on iPhones, Android phones, Windows Phones, etc.).


Redefine the word app did we? Since we're already arguing semantics lets get literal...

http://en.wikipedia.org/wiki/Application_software

The word "app" has been short for "application" in common use since 1992 (19 years now) which long predates the app store. So I would argue that every person with a personal computer (around 2/3rds of the population of the US) was using apps on a regular basis long before iOS was even on the scene.

Were it the "Apple App Store" then I wouldn't really have a problem with it. However, if you were to ask me what Steam was, or what the Google Marketplace was, etc, I would tell you that they are each an "app store" and most people would understand.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: 0
RE: App Store is generic
By Iaiken on 3/2/2011 12:08:19 PM , Rating: 2
quote:
I find it surprising that you're defending a tool for junk litigation and restriction of free trade...


Exactly where did I do that?


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: -1
RE: App Store is generic
By eskimospy on 3/2/2011 12:25:21 PM , Rating: 2
And they should sue. There would be a substantial risk of customer confusion, exactly what trademarks are intended to avoid. This is PRO competition, because it gives customers more information. Do you want your grandmother sifting through 10 different types of 'Windows'? Interestingly enough, Microsoft's brief mentions that the USPTO rejected an application for a trademark on 'the computer store'.

The real reason Apple is doing this is that Windows is an immensely valuable trademark that they hope to use as leverage to scare Microsoft away.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: -1
RE: App Store is generic
By eskimospy on 3/2/2011 12:50:37 PM , Rating: 5
It actually IS the job of government to do exactly that sort of regulation of the marketplace because it entails substantial overhead investigative savings for all parties involved. In fact this is PRECISELY the role of government, as it enables parties to more easily identify the other parties they wish to make a transaction with. This isn't making buying decisions for people, it's aiding them in making the buying decision they actually want.

What on earth does our country gain by forcing every customer to conduct additional research on each product they buy to be sure they aren't unintentionally getting a knockoff? What is the benefit to society? A quick trip to southeast Asia should show you why enforcing trademarks and limiting knockoffs is a big benefit for everyone.

By all means though, explain why defending Windows on the basis of confusion is a 'highly flawed argument'. Are you trying to say that if your grandmother saw two different operating systems on the shelf, both named Windows, that she would not be at all confused as to which one she would like to purchase? Please explain how getting to name things whatever we want is worth the transactional overhead this creates.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: 0
RE: App Store is generic
By eskimospy on 3/2/2011 1:11:58 PM , Rating: 4
No one said it was the fault or responsibility of government if someone got the wrong product, what I DID say was that the proper regulatory role of government is to create an atmosphere where that happens as infrequently as possible, because it's a drag on our economic system.

I have no idea where you got the idea that trademarks somehow turned into 'the government telling you what you can and can not buy' other than a fundamental misunderstanding of what a trademark is. Also, having 'government tell you what you cannot buy' is in fact a vital function it performs, unless you don't mind your neighbor buying some nerve gas.

Again, please let us all know what we will gain by allowing companies to name their product whatever they want that will exceed the additional research costs that will be stapled on to many transactions.


RE: App Store is generic
By tdawg on 3/2/2011 1:22:16 PM , Rating: 3
quote:
Err... people should have freedom to buy what they choose. With that freedom comes the responsibility to research your decisions.


People should be free to choose what they choose and should be knowledgable about what they buy before they put their money down, but companies do not and should not have the right to dupe consumers by using product names and descriptions that are similar to the real thing.

Trademark law exists to protect business intellectual property; if I work hard to produce merchandise under a trademark (registered or otherwise) and that product is successful and gains brand recognition, I sure as hell don't want anybody else piggybacking on my brand name and stealing my customers.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: 0
RE: App Store is generic
By hsew on 3/2/2011 2:26:53 PM , Rating: 1
quote:
Let the market decide, don't implement artificial trade barriers. I think generic trademarks ALL need to be removed, allowing free competition without the threat of lawsuits.


quote:
It's not the job of big brother government to help poor confused customers make their buying decisions for them.


quote:
people should have freedom to buy what they choose. With that freedom comes the responsibility to research your decisions. If you blindly purchase something you have no idea of the quality of, that is NOT the fault or responsibility of the government. The government is not here to be your daddy and tell you what you can and can not buy. It's here to provide for basic functions like defense, transportation, and, arguably, education.
(Actually, there is no argument for education. Public sector education is a JOKE. PERIOD.)

I laughed. You actually expect people to take personal responsibility for their actions? What are you, a self-sufficient, competent human being or something!?


RE: App Store is generic
By Denigrate on 3/2/2011 12:28:10 PM , Rating: 2
Except that Windows is no longer a generic term, in regards to software anyway. If you ask anyone what Windows is on a computer, they will say it is Microsofts OS. Period. While you may argue that Windows should not have been granted as a copyright in the first place, it is now beyond argument.

Now, if you ask people what App Store is, they will say it is a place to buy apps, and may or may not tie it to Apple. If it is an iPhone user, they will say something about Apple, but if it is an Android user, they will probably say something about Android.

The difference is that Microsoft is getting to the App Store copyright before it has been completely cemented as an Apple centric term. I don't think you really understand copyright law.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: -1
RE: App Store is generic
By NellyFromMA on 3/2/2011 12:43:36 PM , Rating: 2
The terminology "window" as you are using it became generic and the popular term BECAUSE of Microsoft Windows popular and adoption. The same is not true of Apple. It didn't pioneer the terminology, users did and long before Apply became popular. I think its important enough.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: -1
RE: App Store is generic
By Iaiken on 3/2/2011 1:30:12 PM , Rating: 3
quote:
While I agree with you somewhat, I think the term "app" was used far less colloquially than "program" on the PC side prior to Apple's smart phone success.


A program that is not system software or middleware (two things lay users barely understand), is application software. As program came into more colloquial use as a verb, it fell out of use as a noun. One programs an application, instead of writing a program despite both being grammatically correct.

Personally, I was using the word "app" as far back as high school because it was easier than saying application. I travel all over the US and Canada and I can't even remember the last time I heard anyone use the word "program" as a noun with regards to software.


RE: App Store is generic
By Fritzr on 3/2/2011 10:45:37 PM , Rating: 2
A few days ago I told a lady that her new phone supported apps.

Her reaction: What is an app???

I then told her that an app is a program that runs on her smartphone.

Her reaction: Yippee, my phone will run programs!!!

When people talk about computer applications they will say "program" or "game" or "spreadsheet" unless they are trained in "business speak". They will not say "application", "recreational application", "accounting application" etc. Those are computer programs.

Windowed operating systems were also available on the Tandy Coco, C-64, Apple II & Apple III among others. The Smalltalk OS developed around 1970 used windows also. All of these were known by their marketing names though and "window" was simply something they displayed.

Microsoft simply used Windows as their marketing name. There was no confusion between windowed OSes and the Microsoft GUI overlay called Windows.

Microsoft actually did sell an operating system under the name "Disk Operating System" They marketed 2 versions Microsoft Disk Operating System and Personal Computer Disk Operating System. Those were the trademarked names right along with their better known acronyms MS-DOS and PC-DOS. Digital Research added to the fun with Digital Research Disk Operating System aka DR-DOS. Systems compatible with MS-DOS are collectively known as "Disk Operating System" or DOS.


RE: App Store is generic
By Gurthang on 3/2/2011 2:31:04 PM , Rating: 2
Trademarks can use generics like "Apple" or "Windows" so long as the term is not used genericaly within the market in which the product is sold/used. I.E. No company may trademark the use "Apple" to sell apples grown on trees. But in the sale of computers it is fine. (And due to conflict with the Beatles Apple records company Apple (the computer company) was blocked from useing the trademark in the music industry.)

So while the term "window" is generic in the realm of computer GUI interfaces. The use of the term Windows in referance to operating systems is specific and not generic. Can lawyers argue this and waste time and money over it of course they can. Would Microsoft loose maybe... jury trials can be a crapshoot.

Lets be honest here Microsoft has been very good at defending the trademark "Windows" considering the challenges to the point now that even if I try to confuse you by saying "I just loaded Windows on my Mackbook Pro laptop" most folks will take it for granted I am talking about the Microsoft Windows OS and not something like X Windows.


RE: App Store is generic
By mcnabney on 3/2/2011 1:24:26 PM , Rating: 3
No, MS was still in DOS-land when windows in a GUI appeared all over the place. When Microsoft copied the dominant Apple GUI they seized the name Windows to differentiate it from the prompt-based MS-DOS.

Put it this way, could Microsoft enter the social networking market with a product called Friend and trademark it?


RE: App Store is generic
By Fritzr on 3/3/2011 10:26:23 AM , Rating: 2
Most likely the owners of the "Friendster" name would sue.

Microsoft could have developed a Social Network under the "Friend" label if someone else had not beaten them to it :)


RE: App Store is generic
By Iaiken on 3/2/2011 12:43:14 PM , Rating: 2
Nowhere did I defend the term "App Store", in fact, I attacked it. I merely noted that "Apple App Store" would be a more appropriate trademark since it adds enough specificity that it is no longer overwhelmingly generic. This is the same reason why Coca-Cola works despite containing the generic word "cola".

At no time did I say anything about Windows and I reject and and all of your inferences made in the support of your argument. That is an argument that I am unwilling to be involved in because of the ubiquity of the name and Microsoft's seemingly responsible enforcement of its use thus far.


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: -1
RE: App Store is generic
By Fritzr on 3/2/2011 10:53:00 PM , Rating: 2
Bad choice of example. Coca Cola is a cola drink with coca flavoring. That name is just as generic as cherry cola or lemon line soda.

What makes it eligible for trademark is that the Coca Cola company was the first to put a cocaine energy drink on the market. They labeled it with a name describing the flavor and defended their trademark on the basis of using it first as the name of a product. They strengthened their ownership of the name by forming a corporation called Coca Cola.

They changed the formula some years later and the cocaine energy drink became the coca flavored cola that is popular today.


RE: App Store is generic
By acer905 on 3/2/2011 12:43:16 PM , Rating: 3
Actually, the number is Googol. Larry Page and Sergey Brin changed it's spelling on purpose.


RE: App Store is generic
By JasonMick (blog) on 3/2/2011 1:47:36 PM , Rating: 3
Whoops, you're right. Thanks! :D


RE: App Store is generic
By Klober on 3/2/2011 12:52:29 PM , Rating: 2
I'd like to preface this response with saying that I am firmly in the camp of the "App Store" should not have been approved for a trademark. On the other hand I am on the fence about "Windows" being trademarked - you make a good point about every major OS using windows, but at the time "Windows" was trademarked there weren't any clear markers that it would end up that way.

Anyway, on to my actual point - when it comes to Google the name is not actually a number, just a play on the number. They wanted it to be associated with the number because they want it to represent how they are trying to organize a nearly infinite amount of information, but they stuck to a very trademark-able name by changing the spelling from "googol" to "Google". It was an excellent idea in my opinion and gave them the uniqueness they needed to have a valid trademark.


RE: App Store is generic
By Klober on 3/2/2011 12:54:47 PM , Rating: 1
And apparently I'm a little slow on the draw... :p


RE: App Store is generic
By erple2 on 3/3/2011 7:28:06 PM , Rating: 2
I think that the "App Store" was probably a trademark-able name when there weren't a bunch of copies of the same thing, but it's now too ubiquitous to be Trademark-able.

I liken it to Xerox, Kleenex, Coke (If you're in/from the South), or Ping Pong.


RE: App Store is generic
By MastermindX on 3/2/2011 1:08:37 PM , Rating: 1
Google is not a number... Well, not any I know of...

Googol is a number. It might be essentially pronounced the same, but the spelling is different. The company didn't copyright "Googol" which is a number, but Google.


RE: App Store is generic
By NellyFromMA on 3/2/2011 12:01:05 PM , Rating: 2
I agree, double standards are bad. Also, I don't mean to say there aren't similarities, but I can't help but wonder that without the relevance and impact Microsoft Windows had on society as a whole, the term "app" in general would likely not exist in its current form. We wouldn't be talking about an App Store at all I imagine.

Windows is a brand. App is not. That's my perspective. I also think the relevance of the terminology "app" hinges on the relevance of technology in the past decade which was largely on the back of Microsoft, despite the angst towards them many feel out of some entitlement to technology or something.

I'm just saying, I can easily see the difference. Whether they have legal weight or not isn't my point. The system for which copyrights and trademarks are entirely different.

Let's also not forget that technology's role in the business world and societies in general was much different when Windows was trademarked as opposed to Apps. Society is much more aware and technology in general is much more popular.

Time change, relevance changes. I don't claim to be right or wrong on the matter, as I'm not expert. There are evident differences IMO though.

Also, as an aside, I enjoy reading your articles. Thanks for your contributions.


RE: App Store is generic
By NellyFromMA on 3/2/2011 12:03:57 PM , Rating: 2
Gah.. "The system for which copyrights and trademarks are entirely different." should read:

"The system for which copyrights and trademarks are issued is clearly flawed on several levels"

My apologies for the double post..


RE: App Store is generic
By Creig on 3/2/2011 12:21:38 PM , Rating: 2
quote:
I'm sure my original comment was downrated for seemingly agreeing with Apple and being critical of something Microsoft did.

No, I believe you were downrated because people agree with your first assessment, but not with the second.

Trying to claim ownership of "App store" is like trying to gain exclusive usage of "Auto dealership". It's simply too generic.

Microsoft, on the other hand, decided to go with "Windows" to refer to their OS. I believe Apple originally used "System". If you ask me, "System" is even more generic than "Windows". But Apple went on to change the name to "Mac OS" whereas Microsoft stuck with "Windows".

But I find Apple's lawsuit to be a bit curious. Both "Windows" and "Apple" are common dictionary terms. If Microsoft can no longer use the word "Windows", does that mean that "Apple" will have to change their name as well?


RE: App Store is generic
By JasonMick (blog) on 3/2/11, Rating: 0
RE: App Store is generic
By The Raven on 3/2/2011 3:31:10 PM , Rating: 1
Just to back up Mick here, as I agree nearly 100% with his argument.
quote:
Trying to claim ownership of "App store" is like trying to gain exclusive usage of "Auto dealership". It's simply too generic. Microsoft, on the other hand, decided to go with "Windows" to refer to their OS.

Going along with that logic, you are saying that protecting "Windows" would be akin to protecting "Auto" in the "Auto Dealership" example since "Windows" is an OS that uses windows.

I'm with Mick.
quote:
Microsoft and Apple should NOT be able to sue to prevent others from using these generic terms in their marketing.


RE: App Store is generic
By Master Kenobi (blog) on 3/2/2011 7:38:53 PM , Rating: 3
Doesn't have to be "window". In several of the programming languages (Looking at you Java) you refer to them as panes and panels.


RE: App Store is generic
By The Raven on 3/3/2011 4:07:14 PM , Rating: 2
Very true. It doesn't matter what the word. Whether it is "Favorite Icons" or "Favicons" publicly used words that have become part of language (even if it is some niche jargon) should not be protected by law. Only when someone starts using it in a new context (like calling a car a Mustang) or invents a word completely, should it be protected. And no it should not be retro actively protected either.


RE: App Store is generic
By fic2 on 3/2/2011 4:32:17 PM , Rating: 2
quote:
Similarly, Microsoft should not be allowed to SUE other OS makers from using the generic name "Windows".


Is "Windows" a generic term because of Microsoft? Before MS Windows did people open a window on their GUI or did they call it something else (pane, application, widget)? If it has become the generic term because of MS then I say they should be able to have their trademark - within the realm of computer os software.

There are several trademarked names that have become pretty generic - Xerox==copy, Kleenex==facial tissue, etc. Are you saying that because "Xeroxing" a document has become equal to copying a document that any company that makes a copier should be able to call it a Xerox - i.e. Bob's Xerox machine?


RE: App Store is generic
By Fritzr on 3/2/2011 11:04:09 PM , Rating: 3
Given time that is what happens. Asprin is the trademark of Bayer Gmbh for acetylsalicylic acid. Bayer gave up years ago on defending their trademark, so nowadays their product is Bayer Asprin competing with Safeway Asprin, Rite-Aid Asprin and hundreds of others using the Bayer trademark without permission. Popular usage was just too strong.

Saran, makers of plastic wrap, actually ran a campaign to stop the public from referring to plastic wrap as "saranwrap". Glad heavily emphasized the name Glad in Glad wrap to make sure that people didn't go to the store for Glad saranwrap :)

No matter how original the name, if it is the market leader, people will start to use it as a generic label. Linux is feeling this now with the term being applied to non-Linux Unix clones :D


RE: App Store is generic
By althaz on 3/3/2011 4:27:16 AM , Rating: 1
Right. Except that every person in the entire world that has EVER USED A COMPUTER has used an app. So probably over 5 billion people had used an app before Apple brought out the original iPhone?


RE: App Store is generic
By The Raven on 3/2/2011 2:49:27 PM , Rating: 2
quote:
a "window" as a GUI element surely existed, but it was VERY niche. Apps have existed for a long time before Apple trademarked App Store.

By the same token I guess you would be ok with Apple registering "Tablet" since it took a niche market and blew it up. I don't.

I get the contention to Jason's point, but can't we agree that both companies are trademarking things that they shouldn't. Microsoft is a unique word/name. This is how most if not all product names should be, right? I mean "App Store" nor "Windows" should be protected, right (unless MS actually invented the term, which it is agreed they did not). But "Microsoft Windows" should IMHO.


RE: App Store is generic
By nafhan on 3/2/2011 11:23:05 AM , Rating: 2
Eh... I disagree. MS did name the OS after an essential abstraction of modern GUI's, however, they aren't going after alternative OS's for using the term "windows" to describe a "display rectangle", and they would lose if they did. That's an important distinction. Apple OTOH is pursuing app stores for calling themselves app stores (and no, app store does not stand for Apple store).

Also, a few more software products (likely copyrighted) with very generic names:
-Word
-Pages
-Numbers
-Illustrator


RE: App Store is generic
By JasonMick (blog) on 3/2/2011 11:30:14 AM , Rating: 1
While there were various names for the "window" (pane, frame, etc.) it was a name for an essential component of all modern OS's so I feel in today's context it is an invalid trademark.

I would feel the same way about an OS named "Panes", "Frames", "Menus", etc.

quote:
Also, a few more software products (likely copyrighted) with very generic names:
-Word
-Pages
-Numbers
-Illustrator


I agree 100% here. These are some excellent other examples (from a variety of companies) of inappropriately vague/generic trademarks.

I think companies should be able to release products with those names, but they should not be allowed to trademark the name.

Trademarks are a barrier to competition. Let the free market decide.


RE: App Store is generic
By eskimospy on 3/2/2011 11:49:30 AM , Rating: 2
But again, 'windows' are an abstraction, while 'app store' is a simple description. In addition, the abbreviation 'app' has been in use to describe precisely what they sell for a very long time before the 'app store' ever existed. As someone else put it, it's like Kleenex trying to trademark the word tissue.

Their name is a description of the object of the trademark in common English in use every day, Windows is not.

In addition, trademarks are sometimes very useful things for both businesses and customers. You want to know that when you are buying a can of Coke, that you are buying Coca-Cola's Coke, not Uncle Jimmy from down the street's Coke. Trademarks prevent Jimmy from trying to fool you into buying something you don't want. Being able to effectively distinguish between competing products is not a barrier to competition, it is an aid to competition.


RE: App Store is generic
By JasonMick (blog) on 3/2/2011 11:56:30 AM , Rating: 2
quote:
In addition, trademarks are sometimes very useful things for both businesses and customers. You want to know that when you are buying a can of Coke, that you are buying Coca-Cola's Coke, not Uncle Jimmy from down the street's Coke. Trademarks prevent Jimmy from trying to fool you into buying something you don't want. Being able to effectively distinguish between competing products is not a barrier to competition, it is an aid to competition.


I agree that there is some usefulness for trademarks, provided that they're unique, non-generic, and identifiable.

Coca-Cola, in fact, is a rather pleasant trademark as it has a relatively non-generic character in that it has the prefix "coca", which is a relic from the days when coca leaves (think cocaine) were added to the blend. Likewise Pepsi is an even better trademark as it has virtually no generic character.

By contrast "Fruit Loops", or Adobe "Illustrator" are overly generic -- likewise with Windows or App Store.

I think companies are fine with releasing products under generic names, but I don't think they should be allowed to sue other companies from releasing similarly generic-named products.

Don't defend junk trademark lawsuits.

Again, let the free market decide.


RE: App Store is generic
By Fritzr on 3/2/2011 11:10:43 PM , Rating: 2
Coca is not a relic of bygone days. Coca Cola still uses coca leaves to supply the coca flavor in Coca (flavored) Cola. They extract the cocaine from the leaf and use the residue to flavor the cola drink. Coca flavored soft drink remains every bit as generic a name as Microsoft's Windows Operating System (commonly known simply as Windows)


RE: App Store is generic
By nafhan on 3/2/2011 12:44:19 PM , Rating: 2
Based on the tone and content of your articles I generally agree with you in regards to IP issues. However, I'm more saying that Windows is less generic, especially in context, than "app store".

Also, not certain if it works this way, but can something lose it's genericness? For example, at this point, "Windows" is so closely associated with MS that people don't really see it as generic term anymore.


RE: App Store is generic
By JasonMick (blog) on 3/2/2011 1:06:59 PM , Rating: 2
quote:
Based on the tone and content of your articles I generally agree with you in regards to IP issues. However, I'm more saying that Windows is less generic, especially in context, than "app store".


Thanks! I guess I could buy that statement.

I'm not saying either company should be banned from making products with those respective names.

I'm just arguing is it really the best expense of taxpayer $$ to support this kind of litigation by granting these trademarks?

I think all trademarks containing generic terms "Windows", "App Store", etc. should be revised to contain their company's non-generic name. E.g. "Microsoft Windows", "Apple App Store". (Note: Apple is acceptable here, as it is non-generic in its context as "apples" are not inherently part of computing or have any meaning as a computer component...)

Companies should feel free to just refer to their products by the generic title (e.g. Windows/App Store), but they should not be allowed to waste taxpayer $$ in anticompetitive suits claiming ownership of the name.

Apple is clearly in the wrong here, but I was just asserting that allowing Microsoft to own the term "Windows" when applied to operating systems is an equally dangerous precedent that risks similar junk litigation and wasted taxpayer $$.


RE: App Store is generic
By TheBaker on 3/3/2011 12:53:56 AM , Rating: 1
quote:
I feel in today's context it is an invalid trademark.


See, there's your problem. You're re-evaluating an existing trademark by new standards. The term "Windows" is now a household word precisely because of Microsoft's software. i would be willing to bet that Microsoft would not sue someone that named a product "Windows" if it were in a completely different industry. If someone made a shirt for a dog that looked like their internal organs or skeleton and called it "Windows for dogs" Microsoft would probably ignore them. And if they did sue, they would probably lose. Why? Because there is no evidence that Microsoft had any influence in making people recognize the term for what it was in that market.

In the computer market, however, Microsoft DID make the huge majority of the population specifically aware of what a "window" meant in computer terms since they were the first ones to do it (shut up, I know they weren't, but they WERE the first ones to bring it mainstream.)

So, back to the topic at hand: timing. If Apple had tried to trademark the term "App Store" 20 years ago, it would have been fine, because no one used the term "App" at that point. Now, however, most people that knew anything at all about computers beyond how to turn them on knew what "App" was short for, so it's a generic term WITHIN THE MARKET already. An "App Store" is where you go to buy apps, of any kind. If they had named their apps something different, or even put the stupid i in front of it (iApps), it would be fine. But they didn't.

As it stands, they should be allowed to trademark the phrase "THE App Store" but not "App Store" and force the other competitors to name theirs "Windows App Store" or "Android App Store" or whatever, but you can't just trademark "App Store."

TL;DR You can't trademark something that is already in the public domain in the intended usage. It must be more specific. "Windows" was ok because it wasn't prevalent in that usage. "App Store" is already prevalent in the market. It's the difference between "Grocery Store" and "Bob's Grocery Store."


RE: App Store is generic
By Adonlude on 3/2/2011 11:47:22 AM , Rating: 5
quote:
Disagree. EVERY major operating system uses windows. This is a generic term since the 80s for panes in a GUI. Linux users open GUI windows, OS X users open windows, Windows users open windows.

In 20 years if the verb "google" becomes the dictionary defined term for "internet search" will we start sueing Google too?

Don't be fooled by your lifelong conditioning to understand GUI boxes as "windows". Before operating systems a window was exclusively understood as an opening in a structure by which to see through and was usually filled with glass. The extension of the word "window" to a box in a GUI was a novel and fitting metaphor at the time and its inventor deserves credit for that. Unfortunately for Windows it was such a good metaphor that over time it actually spawned an alternate definition of the word.


RE: App Store is generic
By MrTeal on 3/2/2011 1:09:26 PM , Rating: 3
So then is Dodge's trademark for Hemi invalid since people have been building engines with hemispherical combustion chambers for more than 100 years?

Likewise, if I owned an engine manufacturing company, and I wanted to produce a series of crate engines called "Crankshaft Engines" with models like the Crankshaft 455, Crankshaft 5.0, etc, I could probably get a trademark for that, even though crankshafts are used in pretty much every modern gas engine.

You can argue that trademarks are overly broad or that the system should be refined, but what MS did isn't invalid. As a comparison, my Start menu has been organized with all the program folders sorted into Apps, Games, Utils, etc since Windows 95 came out. This really boils down to is, does the term Apps refer to iOS Apps or is it just an abbreviation for application? I'd say the latter. App Store is too generic.


RE: App Store is generic
By sprockkets on 3/2/2011 7:07:52 PM , Rating: 2
Uh, buddy, believe it or not, Chrysler invented the modern "hemi" engine design we all use today. They more than deserve it.


RE: App Store is generic
By tdawg on 3/2/2011 1:15:47 PM , Rating: 2
I think it would be easy for MS to argue that the term Windows does not refer to application windows, but rather to the concept of a window into the digital world, or a window into a visual computer experience (rather than looking at a command line UI).

The term "Windows" seems, to me, more abstract than the term, "App Store", and is much less generic in relation to the concept of an operating system versus the concept of app sourcing--a centralized store for apps is quite generic.


RE: App Store is generic
By Xaussie on 3/2/2011 1:24:18 PM , Rating: 2
While windows features had been around a long time before MS Windows (see "The Ultimate Display", Sutherland 1965), we didn't refer generically to the desktop as windows. The term app on the other hand as a short form of application has been around as long as I've been in computing (around 35 years). An app store is simply a place to buy apps and is most definitely too generic. Apple's 'app store' doesn't sell applications, it sells applications for one specific platform and that should be part of the specification if they want to patent a term that has been in general use for over thirty years.


RE: App Store is generic
By Breakfast Susej on 3/2/2011 11:06:21 AM , Rating: 2
It is indeed quite generic, but if anything it tends to illuminate the absurdity of the current situation as far as patents and trademarks go.

In many ways Apple can be easily observed to be quick to congratulate themselves for inventing that which they did not invent. Perhaps it is even arguable that in the greater scheme of things, Apple has "stolen" far more ideas than it ever legitimately pioneered.

Still as far as the term "App Store" goes, it cannot be disputed that they were there first. And let them have it, would be my response. I see nothing wrong with "Android Marketplace" or "Windows Marketplace for Mobile."

In conclusion Apple is often "full of crap" as they say. However, where patents and trademarks are concerned, I would hardly excuse Microsoft or any other corporate entity as it were from guilt, as far as abuse of the absurd system that is the patent and trademark office goes.


RE: App Store is generic
By psonice on 3/2/2011 11:18:25 AM , Rating: 2
I think neither trademark is a particular problem.

For windows: yes, it's a generic description of a bog standard UI feature that was around before windows was. But it's not a trademark on the term windows describing the UI feature, it's the OS built around a windowing UI. Other OS makers (so far as I'm aware at least) are free to call their windows windows, so long as they don't call their OS that.

For the app store: it's a very generic description, but I don't remember it being the generic name before apple started using it. It was apple that made the short term 'apps' common, and built the 'app store'. If they'd called it 'software store' or even 'application store', there would definitely be an issue.


RE: App Store is generic
By SmilingMan on 3/2/2011 11:20:09 AM , Rating: 3
Right.

A "Windows" Operating System is a name for an Operating System. Sure, many OS's use windows... but the term "windows" isn't copywritten - only with regards to naming an OS. You can still open a window in OSX. Though, for that matter, "OSX" or "Operating System Ten" or even "Operating System X" is a heck of a lot more generic a term.

If "App Store" is not a generic term, then what is the commonly accepted generic term? People refer to a "clothes store" all the time - would it be reasonable for someone to claim that they have trademarked "Clothes Store (tm)" and from now on other places had to refer to themselves as a "wearable covering emporium"?

If there was a common term existing - say "Online Application Shop" or "Internet Software Vendor" or even "Application Shop" the "The App Store (tm)" would be fine. But there isn't - there's plenty of examples over the last couple of years of people referring to the "Android App Store" and so on. So while you can call it "The App Store", expect the same exclusivity as "The Cake Shop", "Coffee Shop" and "The Book Store".


RE: App Store is generic
By Fritzr on 3/2/2011 11:16:52 PM , Rating: 2
There actually are small businesses using variations of "Cake Shop" as their name :D


RE: App Store is generic
By rwpritchett on 3/2/2011 11:40:24 AM , Rating: 2
Let's apply the situation to other marketplaces.

There is a grocery store chain called "Whole Foods". "Whole Foods" sells... whole foods (natural or organic). That is their mark, brand, and/or identity. Other grocery stores sell whole foods but cannot call themselves "Whole Foods".

A store cannot call itself "Grocery Store" and fully expect full ownership of the term "grocery store" and control the use of that term by the rest of the market. That's insane.

Windows = Whole Foods
App Store = Grocery Store


RE: App Store is generic
By luseferous on 3/2/2011 12:37:43 PM , Rating: 2
W.I.M.P ring any bells ?

Windows Icon Mouse Pointer.

Was used before the term GUI came about and certainly before Windows the O/s.


RE: App Store is generic
By luseferous on 3/2/2011 12:41:59 PM , Rating: 3
Not to be confused with:

Weakly Interactive Massive Particles :)


RE: App Store is generic
By Mike Acker on 3/3/2011 8:17:01 AM , Rating: 2
ordinary words shouldn't be used as trademarks. remember the brouhaha over "Lite"? if ya want the other ya have to ask for Bud Light.

Microsoft's trademark should be something like "MS/Windows". it would be OK to call it "windows" for short but "windows" is an ordinary word and should not be made into a trademark.

and no, Apple is NOT "full of crap here" -- they are right on the mark.


RE: App Store is generic
By Mike Acker on 3/3/2011 8:20:01 AM , Rating: 2
ordinary words shouldn't be used as trademarks. remember the brouhaha over "Lite"? if ya want the other ya have to ask for Bud Light.

Microsoft's trademark should be something like "MS/Windows". it would be OK to call it "windows" for short but "windows" is an ordinary word and should not be made into a trademark.

and no, Apple is NOT "full of crap here" -- they are right on the mark.


Huh?
By themaster08 on 3/2/2011 10:56:20 AM , Rating: 5
Windows = OS - Unique in terms of operating systems.

App Store = App Store - generic term to describe a store for applications.

That'd be life if Microsoft called Windows "Operating System"

By that logic, the word Apple should be ilegal to use also.




RE: Huh?
By sadffffff on 3/2/2011 11:22:53 AM , Rating: 2
^^^ This.

Thank you for summing this up perfectly.


RE: Huh?
By The Raven on 3/2/2011 11:23:54 AM , Rating: 2
Pretty good point.
quote:
Apple Defends App Store Trademark, Argues "Windows" Trademark is Illegal

I like this line because it shows Apple thinking 2 'wrongs' make a 'right'. Or not even that. It shows them tangled up in straight up hypocrisy.

I'm rooting for MS on this one... ( :-C~ ...I'm going to go take a shower now...)

...even though I don't believe Windows should be protected as it is. Windows (with a small 'w') had been around the OS market before Windows came out. If MS had invented them then I could see a case for it. But I think there should be able to be a Apple Windows, Google Windows, etc. also in the marketplace (Not to mention Google Office lol). If that is damaging to MS then they should've avoided such a generic term when they named the product.

We should not be protecting either of these foolish companies, and picking up their legal fees at checkout. IP law needs an enema.


RE: Huh?
By themaster08 on 3/2/2011 11:49:58 AM , Rating: 2
You have to consider the scenarios in which these terms would be used.

The words "window" and "windows" can still be used by anyone to represent actual windows containing applications. Why else would these terms be used in computing?

The term App Store is used widely to represent, well, app stores.

Go figure.


RE: Huh?
By The Raven on 3/2/2011 2:41:22 PM , Rating: 2
quote:
You have to consider the scenarios in which these terms would be used.

Definitely.

My point is that thought "App Store" is worse than "Windows," it is still on the hook in my book.

Calling a 'windowed' OS "Windows" is like calling the "App Store" just plain old "Apps". It still doesn't jive. I don't know, maybe MS is the greater offender, but they are both batty if you ask me.


RE: Huh?
By The Raven on 3/2/2011 11:29:32 AM , Rating: 2
quote:
By that logic, the word Apple should be ilegal to use also.

Unfortunately G-D didn't file for IP protection so Jobs wins lol.

I'm waiting for MS to breed a variety of apples called Microsoft apples. Then MS could come out with a computer called the "Microsoft Apple"!


RE: Huh?
By futrtrubl on 3/2/2011 11:30:38 AM , Rating: 2
And as someone else mentioned OS X = OS, certainly less unique than Windows.


RE: Huh?
By MeesterNid on 3/2/2011 12:49:54 PM , Rating: 2
Windows = a collection of user interface elements used to interact with applications. How is that any less generic than app?!


RE: Huh?
By themaster08 on 3/3/2011 7:47:00 AM , Rating: 2
The term "Windows" in the sense you mentioned does NOT violate Microsoft's trademark, which is a name for an operating system, not a program/application window.

Technology companies are still legally allowed to use the term "windows" to represent anything besides their operating system.

The name may have derived from the term to represent an application window, but the term "Windows" to represent an operating system is unique.

http://www.microsoft.com/about/legal/en/us/Intelle...


RE: Huh?
By mmnno on 3/2/2011 5:08:45 PM , Rating: 2
So if MS-DOS was named "Command Line", would Microsoft have been able to defend that trademark?


Why do you always end with an editorial?
By ussfletcher on 3/2/2011 10:56:06 AM , Rating: 4
If you are going to end every 'news' article with an editorial paragraph, why don't you label it as such. Your commentary has no place in the body of an article.




RE: Why do you always end with an editorial?
By paydirt on 3/2/2011 11:13:32 AM , Rating: 3
Blogs have opinion. Blogs have opinion. Blogs have opinion.

Unless you are new to the Internet, the above is a given.

Less than 1% of blogs separate their opinion from the "facts" of the article. You are fighting a huge uphill battle.

If you go to the Daily Show website, there is nothing on the front page that says it is an editorial or satire. People understand that it is, so give them more credit.


By The Raven on 3/2/2011 11:36:54 AM , Rating: 2
Not to mention, there is no such thing as neutral news. The companies pick and choose what to report on and what to say. Why do you think we have FOX and MSNBC? Even if it wasn't a blog, people need to learn how to think for themselves and not just trust everything they see on TV, the Net, or the Newspaper.

And even if there was a perfectly neutral news organization, they would be de facto biased, because not getting up in arms one way or another is a viewpoint as well. This is why I stopped listening to NPR because they were so indifferent about things that everyone around me (actual people, not talking heads) were upset about. But to their aim I think they do a good job 'being neutral'.


By charrytg on 3/2/2011 5:18:15 PM , Rating: 2
quote:
Blogs have opinion.

You may have missed it, unless you are new to dailytech, but this is not (or should not be) a blog post.

Next to each DT writer's post or headline is a link to their blog. This does not show up under Mick's blog section, and is not labeled as such, therefore it is not a blog. On a professional site, that might mean something, but I doubt people treat dailytech in such a serious way.


By Omega215D on 3/3/2011 6:22:56 AM , Rating: 2
FFS this is not in the Blogs section. Look to your right. This is clearly a DailyTech news article.


hypocrite
By Gungel on 3/2/2011 10:58:16 AM , Rating: 3
If Windows is an illegal trademark then what is different with the word Apple?




RE: hypocrite
By MrFord on 3/2/2011 12:18:35 PM , Rating: 2
Especially coming from a company that tried to sue both The Beatles and the City of New York over said word


RE: hypocrite
By Tony Swash on 3/2/2011 12:42:46 PM , Rating: 2
quote:
Especially coming from a company that tried to sue both The Beatles and the City of New York over said word


I thought it was the other way round, I thought the Beatles sued Apple?


Fair enough.
By Smilin on 3/2/2011 1:16:58 PM , Rating: 2
If you say "Windows" is illegal then I'm sure you have no problem with people using "Apple". Right? Tony, that cool with you?

This coming from the guys who snagged: Apple, Newtion, McIntosh, iPhone, iOS, Retina Display, Time Machine, etc etc.

Just STFU already Apple. Microsoft and many many others wish to use the term "app store". It's generic and you're just being anti-competitive. Just let it go already and stop adding to your reputation as a d*ck.




RE: Fair enough.
By Belard on 3/2/2011 6:18:21 PM , Rating: 2
yEP...

The word "apple" is also a generic name referring originally to a FRUIT.


Windows was used by Duquesne Softrware in 1980's
By Looey on 3/2/2011 4:14:39 PM , Rating: 2
Duquesne software company of Pittsburgh, PA had an application that ran on IBM mainframes called TPX. The user could log onto TPX via VTAM and have several windows on his 3270 device. This was before Microsoft had Windows. IBM had a very large terminal that had 4 windows on it but I can't remember the model number. The word windows was commonly used in the 1980's by users on mainframes who logged on to multiple applications at the same time using TPX. There was some other companies that produced windowing products back then but TPX was the best. Being able to logon to multiple applications at the same time was a huge hit. I have always thought Microsoft got the idea for Windows from these mainframe programs. Apple was out with the Mcintosh about then but our company wouldn't be tied to one hardware vendor. If Apple had let its OS run on generic hardware I think it would have dominated the PC market.




By Fritzr on 3/2/2011 11:36:54 PM , Rating: 2
Apple, Amiga (bought out by Commodore), Atari all got the idea from Xerox PARC where the first mouse powered, windowed OS for a desktop computer was developed. The OS was called Smalltalk and even though Xerox killed the program due to a perceived lack of market, Smalltalk is still being maintained and distributed.

There were also multiple windowed operating systems available on 8 bit systems and the IBM-PC in the 80's prior to the release of Window 3.0

As far as generic terms has anyone mentioned PC yet? The term today means Microsoft Windows compatible. As a trademark it originally meant a personal computer sold by IBM with clones being labeled IBM compatibles rather than PCs. The Commodore, Apple, TI and other home computers were not personal computers because that was an IBM trademark :)

Commodore at one point was required to rename their business line (Personal Electronic Transactors or PET) when Philips Electronics sued on the basis that the PE in
Commodore PET violated the Philips trademark. So the decisions fall both ways.


Etymology of "Window"
By Aikouka on 3/2/2011 1:37:11 PM , Rating: 2
I'm actually curious where the term "window" came into use with GUIs. I tried doing a bit of Googling, but nothing really seemed to come up. I ended up finding a history of the GUI at Ars Technica, but they just used the term and didn't seem to have any explanation of who coined it or where it was first used in regard to computer GUIs.

I can tell you one thing, I wouldn't really think to call these weird "application boxes" windows :P.




lmo
By flyingpants1 on 3/2/2011 4:00:34 PM , Rating: 2
I wonder who wrote that stuff about the supposedly controversial "Windows" trademark.




iLOL
By Roffles on 3/2/2011 5:34:23 PM , Rating: 2
Just add an "i" to the front of it like you do everything else...




Grow up, App-Holes
By morphologia on 3/3/2011 6:20:56 PM , Rating: 2
Is it just me, or does the whole 3rd-grade "but he's doing it too!" excuse just not hold water when it's used by a massive corporation?

This is even lamer than Lucas defending his copyright on the word "droid" in a world where using it has become relatively commonplace.




Apple should win this one.
By lawrance on 3/3/2011 11:33:12 PM , Rating: 2
Let's be realistic here. Nobody called them "apps" before Apple started calling them that with the iPhone. We all called them "applications". The phrase "App Store" is a million times more unique than "Windows", so if Microsoft won that one, then their is no reason Apple should not be awarded "App Store".

Lastly... there are only a handfull of "app stores" right now and Apple's was the first. It's not an overly generic term like Kleenex which took decades to become a standard. You guys would make crappy judges as your bias gets in the way every time an Apple product is involved in any article posted on this site.




Apps
By Setsunayaki on 3/4/2011 12:45:13 AM , Rating: 2
Apps were the names of "program sections" and "program plans" during the 60s and 70s when they were internal components to Unix Operating Systems.

You had the OS kernel itself, Apps (which were specific programs which dependended on the Kernel) not counting services as well programs non-dependent on the kernel itself and could be read easilly.

The name itself became popular in the 80s again and its popular today. However, when people say Apps, it means Application.

You hear these words a lot from Apple fans, because it shows that the ignorant masses do not know enough about computers or technology.

Yeah sure, people act like if they are important because they are able to work a SmartPhone or laptop, but at the end of the day, most of those people do not understand computer hardware,software or programming in general.

Sorry kids, assembling a computer because you find some guide online on how to do it does not suddenly make you computer literate. Its the same as saying that firing a 9mm instantly makes you a soldier or a police officer. Notice there is a LOT more training than meets the eye.

"The more things change, the more they stay the same"

People get the latest technology, adopt all the lingo and terminology that passes by and at the end of the day, those very same people are dumb as dirt placing themselves higher then most.

I may not consider myself higher than most, but I am educated and have my experience and everytime I read a lot of these replies not just here at Anandtech but in many forums to the same issues, I feel like stuffing a bag over my head and jumping out the window...

Truly, who needs Direct TV or Dish Network or even a movie theater or stand up comedy bar when the internet is one great big show?

Bottom line is an article like this one proves that Anandtech has so little to cover lately about anything that they have to resort to putting articles like this as "fillers." So much for "Quality" over "Quantity."




By jvitzu on 3/4/2011 1:06:23 PM , Rating: 2
Apple shouldn't be able to hold a trademark on the phrase "App Store". It's fundamentally different from Microsoft's trademark on the term "Windows".

"App Store" is a term that needs to be available for use in naming and describing stores that sell apps. "Windows" is not nearly as generic a term.

It's like the difference between the words "car" and "wheels". You can't let an auto manufacturer trademark "Car", but "Wheels" as a name, is acceptable. No manufacturer is going to object to Ford building a new vehicle called the "Wheels".




I don't get it
By Queonda on 3/3/2011 6:00:01 PM , Rating: 1
You're both huge-ass corporations making billions of dollars. Quit your childish bitching!




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