Thomson Reuters News & Insight
Featured Content from WESTLAW
Beginning in June, Thomson Reuters News & Insight content will be available exclusively on WestlawNext®, as part of its Practitioner Insights offering. On June 21, the Thomson Reuters News & Insight website, iPhone® app and newsletters will be discontinued. See Frequently Asked Questions to learn more.

California Legal

  •  
  •  

App store icons at a San Francisco Apple outlet. REUTERS Robert Galbraith

Expert witness death throws wrench into Apple, Amazon case

2/5/2013 COMMENTS (0)

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 store."

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 registered.

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 Monday.

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 comment.

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. 

Follow us on Twitter @ReutersLegal | Like us on Facebook  


Register or log in to comment.

© 2013 Thomson Reuters