I think the title is a little misleading. The article deals with the dismissal of the passing off claim which would be framed by Apple as a deliberate attempt b

I think the title is a little misleading. The article deals with the dismissal of the passing off claim which would be framed by Apple as a deliberate attempt by Amazon to pass off their own store as being related to Apple's. I highly doubt that Apple's lawyers thought there was ever a chance that this claim would be successful but nevertheless, there is no harm in at least trying on ancillary claims, even for the purposes of acquiring leverage for settlement negotiations. However, in any event, even in the absence of passing off, confusion could still arise as it doesn't require any deliberate intent as it is based on consumer perception rather than service provider intent. I don't think there's any question here of the term 'App Store being distinctive in its own right. The question for the judge will be whether through usage of the term by Apple, it has acquired sufficient distinctiveness so that it serves as a unique identifier for Apple's store.