A federal judge says Apple has failed to provide sufficient evidence that Amazon's "Appstore for Android" would confuse customer. That may cost Apple a key motion -- and possibly the case.

  (Source: 20th Century Fox)
Judge will "probably" kill a critical motion in the case

In its trademark infringement case against, Inc. (AMZN) in Oakland, Calif, federal court, Apple, Inc. (AAPL) argued that the term "App Store" was synonymous with the iPhone, just as the trademarked HoneyBaked Hams are synonymous with a Michigan company.  However, the judge preside over the case indicates that she feels like Apple is feeding the court a bunch of baloney.

The iPhone is Apple's biggest product and it gets over half its revenue from it.  In the face of Google Inc.'s (GOOG) Android OS handsets -- which often come with superior hardware to the current generation iPhone -- one of Apple's main selling points has traditionally been its strong catalog of apps.  

The company argues that if other smartphone makers could use the term "App Store", or similar terms, that it would confuse customers and "irreparably" harm its sales.  Apple currently holds a trademark on the term.

The first major company to call Apple's bluff was Seattle, Washington-based Amazon, who on March 22 opened the "Appstore for Android", a third party alternative to the Android market.

Apple, who does not allow third-party app stores, sued Amazon within days.  Amazon argued that the term "App Store" was generic and Apple could not claim ownership over those two words.

Meanwhile, Apple filed a motion seeking an injunction to ban Amazon from using the name until the case was settled.  Apple claims that Android fails to provide protection of user data and against "viruses", and thus associating the term "app store" with Android would give the iOS App Store a bad name.

Deliberating on that request, presiding Judge Phyllis Hamilton said she was "probably", going to deny that request, after further review the filed documents.  Apparently the rejection is less about the inherent merit of the term and more about Apple's inability to argue its case effectively.

Judge Hamilton says a "stumbling block for Apple" is its inability to provide "real evidence of actual confusion" among customers.  She told Apple's legal team in court, "I'm troubled by the showing that you’ve made so far, but that’s where you’re likely not to prevail at this early juncture."

A denial of the motion is a serious blow to Apple's case.  Though it can continue to contest the issue in court and hope for a trial victory, it would be an indication that Apple's case might not be as strong as it thinks it is. 

Apple was passed by Android last year in U.S. and global sales. 

The Cupertino, Calif. based firm has been busy in court suing South Korea's Samsung Electronics Co., Ltd. (SEO:005930) for allegedly "copying" the iPad.  Samsung has since filed countersuit [1][2].  Apple has also been on the receiving end, with Finland's Nokia Oyj. (HEL:NOK1Vforcing it to settle over patent infringement claims.  Apple is also the subject of a serious suit, which claims that the upcoming Mac operating system, OS X 10.7 "Lion", ripped off a feature that was earlier offered to the company by an independent developer.

"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes

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