By Dan Levine
SAN FRANCISCO, Feb 5 (Reuters) - Apple Inc and Amazon.com
Inc are trying to figure out how to cope with the death of a key
Amazon expert witness in trademark litigation over the term "app
Apple has accused Amazon in the lawsuit of misusing what it
calls its App Store to solicit developers for a mobile software
download service. But Amazon argues its so-called Appstore is so
generic that it cannot be owned by any company and that the
burden falls on Apple to prove otherwise because the mark is not
Trial is scheduled for August in Oakland, California,
federal court. But Amazon's expert witness on genericness, Dr.
Ivan Ross, recently passed away after being diagnosed with
cancer, according to a court filing by the company's lawyers on
Ross had already completed a survey and an opening report,
so Amazon proposed that another survey expert be allowed to
offer it in court and defend its design.
Amazon said in its filing that Apple opposes its request and
wants the online retailer to pay the costs of a new survey and
new opening and rebuttal reports.
Apple could not immediately be reached for comment. An
Amazon representative also could not immediately be reached for
In the filing, Amazon attorney Martin Glick of Arnold &
Porter wrote that Apple "has expressed the concern that it
cannot cross-examine Dr. Ross," whose depositions were postponed
because of his illness.
But the Amazon lawyer said that Apple's counter-proposal
"will serve no legitimate purpose while significantly increasing
Amazon's litigation costs and potentially derailing the
already-delayed trial schedule."
Apple will be able to cross-examine Amazon's new expert, who
will be accountable for all the assumptions that underlie Ross's
survey, Amazon said.
Amazon has stepped up competition against Apple in recent
years, launching its cheaper Kindle tablet computer to go after
the dominant iPad and trying to lure mobile application
developers to its Kindle platform.
One of the first public clashes in their tussle was Apple's
2011 lawsuit. Last month U.S. District Judge Phyllis Hamilton
rejected Apple's false advertising claim against Amazon. Apple's
trademark infringement and other claims in the case remain.
The case is Apple Inc v. Amazon.com Inc, U.S. District
Court, Northern District of California, No. 11-01327.
For Apple: David Eberhart of O'Melveny & Myers.
For Amazon: Martin Glick of Arnold & Porter.
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