Apple Inc. v. Amazon.Com, Inc.
Filing
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ANSWER TO COUNTERCLAIM 33 Answer to Amended Complaint, Counterclaim PLAINTIFF APPLE INC.S ANSWER TO DEFENDANTS COUNTERCLAIM byApple Inc.. (Eberhart, David) (Filed on 5/19/2011)
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DAVID R. EBERHART (S.B. #195474)
deberhart@omm.com
RYAN J. PADDEN (S.B. #204515)
rpadden@omm.com
DAVID J. SEPANIK (S.B. #221527)
dsepanik@omm.com
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Telephone: (415) 984-8700
Facsimile: (415) 984-8701
Attorneys for Plaintiff
APPLE INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
APPLE INC., a California corporation,
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Plaintiff,
Case No. CV 11-01327 PJH
PLAINTIFF APPLE INC.’S ANSWER
TO DEFENDANTS’ COUNTERCLAIM
v.
AMAZON.COM, INC., a Delaware
corporation, and AMAZON DIGITAL
SERVICES, INC., a Delaware
corporation,
Action Filed: March 18, 2011
Defendants.
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ANSWER TO COUNTERCLAIM
NO. CV 11-01327 PJH
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Plaintiff Apple Inc. (“Apple”) hereby responds to the counterclaim filed by
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defendants Amazon.com, Inc. and Amazon Digital Services, Inc., (collectively,
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“Amazon”) as follows:
PARTIES
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1.
Apple admits the allegations of Paragraph 1.
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2.
Apple admits the allegations of Paragraph 2.
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3.
Apple admits that it is a corporation organized and existing under the
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laws of the State of California, with its principal place of business in Cupertino,
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California.
JURISDICTION
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4.
Apple denies that any acts or omissions have occurred to give rise to
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any claim by Amazon against Apple. Apple admits that because Amazon alleges claims
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arising under the Lanham Act of the United States, this Court has subject matter
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jurisdiction pursuant to 28 U.S.C. § 1331 and 1338(a).
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5.
Apple admits the allegations of Paragraph 5.
FACTS
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6.
Apple admits that on or about March 22, 2011, Amazon launched a
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service named the “Amazon Appstore for Android” on the www.amazon.com website.
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Apple further admits that the Amazon Appstore for Android service allows a consumer to
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view and download certain mobile software applications for their Android mobile devices.
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Apple further admits that users may shop the Amazon Appstore for Android service either
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by (a) using a personal computer and browser software to access certain portions of the
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www.amazon.com website or (b) using on certain Android mobile devices a mobile
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software download sometimes referred to as the “Amazon Appstore app.” Apple denies
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that the mark APP STORE is generic and, on that basis, denies that the Amazon Appstore
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for Android service is an “app store.” Apple is without information or knowledge
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sufficient to form a belief as to the truth of the remaining allegations of Paragraph 6 and
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on that basis denies the same.
ANSWER TO COUNTERCLAIM
NO. CV 11-01327 PJH
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7.
Apple admits that in July of 2008 it launched its APP STORE
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service, which allows users of Apple’s iPhone, iPod and, most recently, iPad mobile
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devices, and users of computers running Apple’s iTunes software, to browse for and
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license certain mobile software for certain Apple devices such as the iPhone, iPad, and
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iPod touch. Apple admits that such mobile software is sometimes referred to as “apps.”
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Apple further admits that in certain press releases Apple has claimed that the APP STORE
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service is “the largest application store in the world.” Apple further admits that its CEO,
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Steve Jobs, in October 2010 called the APP STORE service “the easiest-to-use largest app
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store in the world, preloaded on every iPhone.” Apple denies the remaining allegations of
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Paragraph 7.
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Apple admits that the current edition of the Oxford English
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Dictionary defines “app” as, in part, “[a]n application, esp. an application program (see
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APPLICATION n. Compounds 2).” Apple further admits that the current edition of the
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New Oxford American Dictionary defines “store” as, in part, “a retail establishment
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selling items to the public: a health-food store.” Apple denies that Paragraph 8 sets forth
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the entirety of either definition. Apple is without information or knowledge sufficient to
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form a belief as to the truth of the remaining allegations of Paragraph 8 and on that basis
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denies the same.
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9.
Apple denies that, based on their common meaning, the words “app
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store” together denote a store for apps. Apple further denies that Amazon and Apple
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operated “app stores.” Apple admits that the American Dialect Society voted “app” as the
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“Word of the Year” for 2010. Apple further admits that in its press release announcing
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the Word of the Year, the American Dialect Society stated: “App has been around for
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ages, but with millions of dollars of marketing muscle behind the slogan ‘There’s an app
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for that,’ plus the arrival of ‘app stores’ for a wide spectrum of operating systems for
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phones and computers, app really exploded in the last 12 months.” Apple denies that the
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words “app store” are commonly used among many businesses to describe mobile
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software download services and further denies that the term “app store market” is used to
ANSWER TO COUNTERCLAIM
NO. CV 11-01327 PJH
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describe the market for mobile software download services. Apple is without information
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or knowledge sufficient to form a belief as to the truth of the remaining allegations of
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Paragraph 9 and on that basis denies the same.
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10.
Apple admits that it is the owner of the mark APP STORE and that
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Apple has the right to exclude uses of APP STORE that are inconsistent with Apple’s
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trademark rights. Apple denies the remaining allegations of Paragraph 10.
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11.
Apple denies that the mark APP STORE is generic and, on that basis,
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denies that the Amazon Appstore for Android service is an “app store.” Apple further
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denies that defendants have the right to use APP STORE as a trademark in connection
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with Amazon’s mobile software download service for Android devices. Apple admits the
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remaining allegations of Paragraph 11.
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Apple admits that an actual and justiciable controversy between the
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parties with respect to Amazon’s right to use APP STORE as a trademark in connection
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with Amazon’s mobile software download service for Android devices. Apple admits that
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Amazon is seeking declaratory judgment pursuant to 28 U.S.C. §2201 and Rule 57 of the
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Federal Rules of Civil Procedure “confirming Amazon’s rights to continue to use the
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words ‘app store.’” Apple denies the remaining allegations of Paragraph 12.
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Apple denies that Amazon is entitled to the relief sought in the prayer
to its counterclaim or to any other relief.
PRAYER FOR RELIEF
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Apple hereby prays:
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1. That Amazon’s counterclaim be dismissed with prejudice;
2. That Amazon take nothing by way of its counterclaim, and that
judgment be entered in favor of Apple;
3. For costs of suit and reasonable attorneys’ fees incurred herein; and
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4. For such other relief as the Court deems just and proper.
ANSWER TO COUNTERCLAIM
NO. CV 11-01327 PJH
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Dated: May 19, 2011
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O'MELVENY & MYERS LLP
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By/s/ David R. Eberhart
David R. Eberhart
Attorneys for Plaintiff APPLE INC.
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SF1:821640
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ANSWER TO COUNTERCLAIM
NO. CV 11-01327 PJH
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