As is well known, Apple sells apps for Apple devices such as the iPhone and iPad through an online store known as the Apple App Store. Apple has sought to establish exclusive use of the term APP STORE, and has applied to register the term as a mark in the U.S. The application has been opposed by Microsoft, which has argued that the term is generic and hence not registrable. (The opposition has been suspended while Apple’s litigation with Amazon is resolved.)
In 2011, Amazon launched its own online store for the sale of applications for Android and Amazon devices, which it called the AMAZON APPSTORE FOR ANDROID. Apple objected to the use of the APP STORE term, and filed suit against Amazon alleging trademark infringement, unfair competition, false designation of origin, trademark dilution and, in an amended complaint, false advertising under Section 43(a) of the Lanham Act. In earlier litigation, Apple had failed in its attempt to obtain a preliminary injunction preventing use of APP STORE by Amazon. In the most recent part of the litigation, Amazon sought dismissal of the false advertising cause of action.
The central question in the case was whether Amazon had made a false statement of fact about its own or another’s products, which is an element of any cause of action for false advertising. Apple could not identify any express false statement made by Amazon. However, Apple argued that Amazon had made an implied false statement because Amazon’s use of the APP STORE term would mislead consumers into believing that Amazon’s store for the selling of applications would have the same qualities as Apple’s own store. Apple sought to rely on cases in which false advertising had been found by implication rather than affirmative false statement.
The court was not persuaded. The court held that as Apple could not point to any affirmative false statement made by Amazon, Apple had to produce evidence (such as surveys and market research) showing that a false message had in fact been conveyed. As Apple had not produced any evidence that consumers viewed use of the term APP STORE as conveying particular qualities, summary judgment was appropriate. It appears that the court agreed with Amazon’s view that Apple’s false advertising claim was in reality just a garden variety trademark infringement claim, and so summary judgment was granted.