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Microsoft Starts Legal Fight Over Lindows Name
actappan writes: "Whether or not Lindows is real, this article on CNET News.com indicates that Microsoft intends to sue them into oblivion. Looks like supression remains the best way to promote innovation." cyberlawyer adds: "Some of you may remember that MS originally had great difficulty obtaining a trademark for the generic term 'Windows' but was eventually able to pay off those who had filed letters of protest to the granting of the mark including Sun, Oracle, and Borland. As a trademark lawyer I (unhappily) have to admit that Lindows probably has a weak case. Of course it's never too late to bring a cancellation action based on genericide ;-)" CodeWheeney contributes a link to coverage at Yahoo, too.
Looks like supression remains the best way to promote innovation.
:)
<tongue-in-cheek>
There's nothing quite as innovative as an operating system with the sole goal of reimplementing APIs from other operating systems until it can run their binaries.
</tongue-in-cheek>
The name is not "Windows" but "Lindows" which gives the impression that it's not Windows but somehow connected to Windows.
Therefore I see no problem in the name, if Microsoft were truly believers of free competition and innovation they'd leave this alone. The only time to complain is if they try and con people into thinking this project has a connection to Microsoft.
I think windows should be a generic term anyway, whether I'm running Windows, X or BeOS I call those boxes on the screen 'windows', therefore any derivatives of the name should be allowed I think.
Ah, perfect. Don't change the name; just slap on the Aqua interface and ship it. This is the legal equivalent of a honeypot.
--saint
Linus has just as good a case... Lindows starts with Lin, which is over half of the name Linux.
How about Windex?
Oh, wait...damn...
I've seen a lot of "IANAL"s discussing issues like this, but, for once, IAAL. (maybe IAAAL? I am actually a lawyer ;).
Anyways, Microsoft's claim is entirely legitimate. 'Lindows' is in the same "industry" as 'Windows', and is intentionally abusing the popularity of Windows for its own benefit.
This is the same as coming up with an electronics company called Panasoanic -- there is the potential for legitimate consumer confusion.
I know it's unpopular to side with Microsoft on something, but for once they're in the right here.
As a copyright/trademark lawyer, I'm hoping the courts make the right decision and force Lindows into a name change.
- Dave Brennins
http://www.davebrenninslaw.org
dave@davebrenninslaw.org
It's software that combines Linux and Windows without violating any trademark or copyright--although I bet Microsoft will sue at some point.
Guess they were right!
I say that we fight Microsoft by refering to all OS's as 'Windows.'
Hopefully this will cause Microsoft to lose the trademark name 'Windows' because it will become generic from over usage.
-cibrPLUR
"If they're alleging that people are going to be confusing Microsoft Corp. with Lindows.com, I think there's zero potential of that happening," he said. "If people are confused, just remember that we're not the convicted monopolist."
Murchinson said Microsoft considered legal action a last resort.
I'm still laughing!
On Murchinson's comment, it can't be a 'last' resort because they don't stop. When you play monopoly do you just plain give up?
I don't think suing them will be the last step - it's their first. They can sue easily, they have lawyers. It's like a Soviet Tank rush in Red Alert 2.. hit your enemy before they can build anything, then they can't get back at you; kill slowly from there.
Windows has become a product of it's own. Not an 'os' anymore. Instead of changing people to linux, change their flavor of windows.
Get your Unix fortune now!
I think the Lindows people /knew/ from the beginning
that MS would spend /their money/ to give the
Lindows a little industry spotlight ;-) Kudos guys.
What f*ing box!?!?
Maybe they should call it 'L'. People can then informally call it the L-windows system but in court they can just turn round and say "no yer honour, it's called L, not L-windows, we can't control what everyone else calls it".
-- SIGFPE
The soft "L" sound is so phonetically close to the soft "W" sound that you could mistake one for the other over the telephone.
Besides, it doesn't matter. It's close enough that, by the "reasonable man" standard, it's nearly exact.
I got my Linux laptop at System76.
it is not the final determiner in court. Even a well known mark may become a generic term. For instance, Bayer lost the mark to "asprin." "Kleenex" became a generic term. Microsoft can show their trademark registeration form until they are blow in the face, but, to their disadvantage, the more widely used the term becomes, the more likely Microsoft will lose the mark.
Microsoft dug their own hole right off the bat. A good test: "What is [it] called?" If the mark is [it] then it is likely to become a generic term. Trademark attorneys have done a great job applying this test by combining additional terms to a potentially generic mark. For instance, perhaps Apple wanted to call their notebooks, "Books." Instead, they merely attached the "i" and the mark became unique.
Windows? Wthelse are these things to be called? That's generic. And Microsoft has lost any unique attributes to the mark.
"There ought to be limits to freedom"
Of course we know that Lindows is not officially connected with Microsoft ... but remember, 99.9% of the public (and even most IT majors, according to that article from a couple days back) thinks that Linux is made by a company of the same name. Most people outside the Linux community would be confused into thinking that Lindows is either:
a) Microsoft's version of Linux
b) Linux for Microsoft Windows
c) Microsoft Windows for Linux
or some other permutation thereof that implies an official connection with/endorsement by Microsoft.
Cheers,
IT
Power corrupts. PowerPoint corrupts absolutely.
Second, this isn't about copyrights. It's about trademarks. And if someone pops up in your market with an extremely similar name and a product that aims to subsume the functionality of yours, it is not unreasonable to consider that an infringement of your trademark.
You're splitting some pretty fine hairs if you consider these products to be in different markets.. they're both operating systems for x86 computers, and the entire point of Lindows is to offer the same functionality (and then some) of Windows.
Sorry, but MS is in the right on this one.
No, this is more analagous to you opening up a fast-food hamburger chain called "McRonald's" with a clown named Donald McRonald for a mascot and a big golden "R" as your logo.
"indows" constitutes nearly every letter and sound in "[WL]indows", and the product is ridiculously similar by intent.
BETHLEHEM (AP): The Christian Lord and Saviour, Jesus Christ, announced plans to sue Microsoft for using the name "XP" for its new operating system.
"The monogram of My Name, formed of the two first letters when written in Greek, "X" and "P" [Chi and Rho], has been in use for well over a thousand years in numerous countries. I am therefore insisting that Microsoft cease using "XP" on its products, as that is tantamount to Taking My Name In Vain."
Added Christ, "I mean it. Don't make me come down there..."
I'm a bloodsucking fiend! Look at my outfit!
this article on CNET News.com indicates that Microsoft intends to sue them into oblivion.
Umm, no...
Fucking slashdot editors... I'm through. I contribute to slashdot no more. This is my last post.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
Conducting additional research on how Microsoft's mark for "Windows" may be generic, I ran across a list of "Trademarks That Have Become Generic." The list includes terms "held by the Trademark Office or a court to be incapable of serving as trademarks for the goods and services they named because they had become, in the minds of consumers, generic terms for those products or services."
So, the test would not be whether Microsoft or a particular judge considers that a mark is a generic term, but if the mark becomes a generic term in the minds of consumers. Perhaps a party could present evidence such as surveys or the online and published usage of a term in a generic sense as a means to describe the thing?
"There ought to be limits to freedom"
Second, a trademark is a trademark. Whether it's a company name or a product name is irrelevant. Even if for some reason you think it should, in some alternate universe where logic is based primarily on coin flips, be relevant as a matter of degree, you might recognize that Windows is Microsoft's flagship product. Calling your OS "Lindows" is tantamount to naming your company Nicrosoft.
And incidentally, I don't think "Lindows.com" is going to stay in business for very long, and one could make a very sound argument that Microsoft has "earned its place".
See you in hell, dinner plate.
In times like these I often find it helpful to directly reverse the situation to eliminate any bias:
For example, what if Microsoft created and was marketing a product called Minux, which was intended to provide the same functionality as Linux and used unique only to Linux technical and architectural concepts?
Would this not be infringement? Microsoft is dead-on here, and although the Windows trademark is ambigious, you all should remember that it was granted in the first place because the name 'Windows' is in fact unique to the computer industry (whereas a company selling Windows it wouldn't be). When you think of Windows and a computer, you always think of Microsoft.
The real question remains -- is this an attempt to gain the needed press via the Microsoft hypemobile or does the former MP3.com CEO really think he has a chance of winning ala Napster? His remark in the article regarding Microsoft's guilt didn't seem to bright and didn't address the real technical question of is it in fact infringement.
We'll have to see on this one, although I do think this will be good to get Linux in the public eye again and possibly get some major userbases/corporations to look seriously at Linux as a viable alternative.
"I'll just chip in a bit for RedHat: I actually have that installed on my university machine." - Linus, '95
This is just like AOL's claim that Aimster is trying to use the term "Aim" in its name to associate itself with AIM. Since I used to work at Aimster I can tell you that this was certainly the case. The name Aimster was chosen, as one would have guessed in August 2000 when it was released, because it was intended to be a combination of AIM (AOL Instant Messenger) and Napster. Then when it became apparent that AOL was going to pursue this as a trademark infringement and try to get the aimster.com domain, John Deep came up with this crazy story that it's called Aimster because "Aimster" is a nickname for girls named Amy. Then he decided that his daughter (Madeline) would change her name to Aimee.
It's obvious (to me, at least) that "Lindows" is intended to associate the product with both Linux and Windows. It is a good name for the product (though perhaps more than a bit tacky), much as Aimster was a good name for Aimster back in the day. However, the cleverness of the name has the downside that they're also piggybacking on all the work Microsoft has done to establish and protect the Windows trademark, so they'll probably lose, and I think it's probably in their best interest to simply change their product and domain to something else. That's what I suggested to John about Aimster, but of course I was ignored.
Then again, Michael Robertson isn't quite as naive as John, and has a lot more credibility and business sense, so maybe I don't know what I'm talking about at all.
rooooar
How about calling it "Defenestration"?
Nah, too subtle.
--LP
ditto!
-- look, cheese ahoy!
Microsoft is making sure this company gets a lot of publicity.
--
The U.S. government causes problems, then pretends to solve them by creating more: What should be the Response to Violence?
Bush's education improvements were
Calling a windowed operating system "Windows" is like naming an automobile "Wheels." It's a generic descriptor, and managing to enforce it as a trademark suggests underhanded legal tactics (in particular scare tactics) against small challengers and generous settlements against large challengers. Either that, or clueless judges, or both.
Remember MS's defense over the Internet Explorer trademark suit? "Internet Explorer" is too general and vague to be a trademark. "Windows" is just the same. Ditto for "Office," "Word," "Access," "Visual BASIC," and any number of similar names used by MS (I have no idea which ones they claim as trademarks by themselves). You seem to be completely ignoring this aspect.
Now, if they were making something that sounded confusingly like "Microsoft Windows," MS would have an airtight case. However, MS should never have had a hope of holding "Windows" alone as a trademark, and that they do is a serious failure of the legal process.
Now, as a lawyer, you are certainly better qualified than I am to predict failures of the legal process; in some areas, I'm sure that common failures are more imporant than the letter of the law. I can't argue with you if you claim that MS will win this, but it is absurd for you to claim that they should win, that a court upholding their exclusive right within the industry to use a standard industry term as a name for the most visible component of their system would be fair and proper.
There should be no problem with having "IBM Windows," "Sun Windows," etc. let alone "Lindows."
Now, this last bit has nothing to do with current law, to the best of my knowledge, but I remember hearing a principle of trademarks that I really wish was law: all linguistic trademarks should consist of a proper noun followed by a descriptive term. Nobody should ever own marketing catchphrases, fictional character names, or descriptive terms as trademarks by themselves. (I don't recall the source)
X Windows, the GUI layer sitting on a lot of different operating systems (including, at one stage, MS Windows) has existed almost since MS Windows 1.0. There doesn't seem to have been a contest there.
MIT plus Digital and a few other companies were behind the first version and it has spread to be an industry standard. They don't seem to have any problems.
Lindows is a fantasy name composed from Linux and windows, which is already genericised with respect to computers. It is distinctly different. However MS will win. IP law in the US depends upon one thing, the dollar. If you have more of them, you win, whatever the merits of the case.
See my journal, I write things there
Well, the Great Grey Lady from the Big Apple objected strenuously to this, so the Infocommies started a contest for a new newsletter name. One contributor suggested, "Call it the New YORK Times. Let's really piss 'em off!"
Millions for defense, but not one penny for tribute, I say!
Quotes from "Running other OSes" thread:
? Real easy, and legal too. Again, note that with Wine, you can run a ton of Windows software _without_ a licensed copy of Windows.
:^)
>>But with VMWare you have to buy/own a Windows
>>license, which kind of nullifies the price
>>advantage.
>Use Wine [winehq.com] then.
I'm betting that's exactly what Lindows is. A friend and I were discussing Wine's license recently, specifically wrt the percieved lack of contributions from Transgaming's WineX (a DirectX centered fork from Wine -- http://www.transgaming.com/) back into the original codebase.
It appeared to us that Wine has a pretty open license much like X11's (http://winehq.com/source/LICENSE). The only real stipulation is the following:
15 The above copyright notice and this permission notice shall be included in
16 all copies or substantial portions of the Software.
So how tough would it be to wrap up Wine in a box with a $99 price tag (price from Lindows' FAQ page: http://www.lindows.com/lindows_products_faqs.php)
So to sum, take open sourced but not "RMS Free" (aka, GPL'd) code, name the result something Microsoft will have a problem with for the free press (as has been mentioned about a million times already), and *poof*, you've got the makings of a 90's style IPO.
It's all 0s and 1s. Or it's not.