First Microsoft filed a legal claim to deny Apple the trademark to the term "app store." Then Apple filed back, arguing its arch-rival's logic and evidence failed to "create a new genericness standard."
Now Microsoft's felt compelled to return fire-but not with a complex legal argument. Instead, the tech giant wants Apple's brief shot down because its typeface is too small and page-count too high.
"Apple's response brief is 31 pages, including the table of contents and table of authorities, and on information and brief, is printed in less than 11 point font," reads Microsoft's Motion to Strike, filed March 8 with the U.S. Patent and Trademark Office's Trial and Appeal Board. "Under the rules, Apple's brief cannot exceed 25 pages in its entirety, including the table of contents and table of authorities, and must be printed in at least 11 point font."
Because of that violation, Microsoft's counsel argues, Apple's response brief should be dismissed, and Apple given time to file a new brief "that complies with the rules and does not add any new matter or arguments."
Microsoft's January filing with the Trial and Appeal Board had asked that Apple be denied the trademark for "app store" on the grounds that "'app store' is generic for retail store services featuring apps and unregisterable for ancillary services such as searching for and downloading apps from such stores."
At the time, Microsoft's legal team argued that "app store" is commonly used "in the trade, by the general press, by consumers, by Apple's competitors and even by Apple's founder and CEO Steve Jobs, as a generic name for online stores featuring apps." In light of that, it argued, the government should deny Apple an exclusive lock on the name.
In its Feb. 28 filing with the U.S. Patent and Trademark Office, Apple shot back that Microsoft's argument was fundamentally flawed.
"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," reads the filing. "What it offers instead are out-of-context and misleading snippets of material printed by its outside counsel from the Internet and allegations regarding how the public allegedly interprets the constituent parts of the term APP STORE, i.e., -app' and -store.'"
Those snippets of material fail to counter the argument, insisted Apple's legal counsel: "Recognizing the many issues of fact raised by its motion and trying to sidestep them, Microsoft also concocts the argument that all -store' formative marks such as APP STORE should be per se generic." However, Microsoft cannot "create a new genericness standard."
According to its corporate Website, Apple already holds trademarks for terms such as "Charcoal," "Chicago," "Gadget," "Sand," and "Tiger." Within the context of the company, those terms apply to products such as operating system software and fonts.
The timeframe for Apple's response to Microsoft remains an open question, as does its next legal maneuver. Whatever it is, though, it'll most likely be delivered in 11-point font.