By Dan Levine
SAN FRANCISCO (Reuters) - Apple Inc and Amazon.com Inc have
apparently resolved their differences over how to cope with the
death of a key Amazon expert witness in trademark litigation
over the term "app store."
The online retailer has withdrawn its request to substitute
a new expert in the case, according to a filing in U.S. District
Court in Oakland, California. Both companies have asked Judge
Phyllis Hamilton to cancel a hearing on the dispute that had
been set for next week.
Apple claims in the lawsuit that Amazon has misused what the
Seattle company calls its App Store to solicit developers for a
mobile software download service. But Amazon argues its
so-called Appstore is so generic that Apple cannot prove
infringement. Amazon says the burden falls on the iPhone maker
to prove otherwise because the mark is not registered.
Trial is scheduled for August.
After Amazon's expert witness on genericness passed away,
Amazon asked to substitute another expert to offer the original
witness's report in court and defend its design. That would save
resources, according to Amazon.
Apple said in a court filing last month that it would not
oppose a replacement report but opposed Amazon's request to have
a new expert sponsor the original survey. Apple said it wanted
to reserve its right to criticize the survey if the new expert
could not answer questions about methodology.
Last week, Amazon replied that Apple would still have the
right to cross-examine the expert. However, Amazon said that it
didn't want Apple to be able to use second expert's lack of
participation in the survey's design as grounds to strike the
Amazon withdrew its request to substitute a new expert in a
court filing Monday and said Apple did not oppose the move. The
filing did not say what the companies had agreed.
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.
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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