Questions over the Windows Trademark

TTop writes "As part of the Lindows lawsuit, the judge has preliminarily ruled that there are 'serious questions regarding whether "Windows" is a non-generic name and thus eligible for the protections of federal trademark law.'" I've always been bothered by Microsoft's habit of naming things using common words (Then again, my history of naming things includes confusing and bizarre names like 'Slashdot' and 'AnimeFu' so what do I know? :)

Comments

Re:X-Windows?

[Fnkmaster]

First of all, there is nothing called "X-Windows" technically, nor has the X Consortium ever referred to anything as such. There is something called the "X Window System" produced by the X Consortium, and implemented by quite a few commercial and Free systems.

Secondly, the term "prior art" only has relevance in the world of patent law. Prior art (the existence of an invention materially identical to the patented invention) can result in a ruling against a patent in a court of law. However, in the case of trademark law, the only relevant question is whether a word has become generic, or part of the common usage. There are common rules to avoid this happening - a company should NEVER refer to a product as "Windows" because they are then referring to a product by a very generic common English term. The product should always be called "Microsoft Windows" or even better yet "Microsoft Windows Operating System" if you expect to ever prove later on that you had a legitimately trademarked name for your product. There are other rules for marketing folks about this, like only using the trademark in the adjectival as in "Kelloggs brand cereals" or (if they had been smarter) "Xerox brand copying machines".

Re:Ouch...

[rgmoore]

Something along the lines of MLB's anti-trust exemption.

As a serious baseball fan, I feel compelled to correct the mistake in this statement. Baseball's antitrust exemption was created by judicial, not legislative, fiat. In Federal Baseball, MLB's lawyers argued that baseball was not interstate commerce, per se, because all of the commercial activity took place locally. Their argument used a precident that travelling vaudville actors were not engaged in interstate commerce even if their tours traveled across state lines. Simply carrying the tools of their trade across state lines to perform essentially local exhibitions was not viewed as being sufficient to constitute interstate commerce. Since it wasn't interestate commerce, the federal government didn't have the power to regulate it, including applying antitrust law. The Supreme Court accepted the argument and ruled in favor of MLB.

The truly odd thing about the ruling is what happened later in the process. When the ruling was later challenged, the Supreme Court upheld it on the principle of not changing old rulings even though they agreed that the old ruling made no sense. In essence they said that the ruling was stupid, they were going to let it stand anyway, but Congress was free to write new legislation to include baseball in federal antitrust law. The exemption was partially removed recently, but it's hardly Congress's fault for writing the law badly.

X Windows System, others

[coyote-san]

This argument is totally bogus.

Nobody expects to eat an Apple computer.

Nobody hopes to have wild monkey sex with an Amazon website.

But "windowing" graphical user interfaces is a term of art that has been incorporated into countless products, many predating the first commercial release of Windows. (And to answer the inevitiable point, MIT was working on the X Window System long before the first vaporware announcement of Windows 1.0, and it was released outside of the Athena project many years before the first practical release of MS Windows (3.1)).

Even the first releases of MS Windows was called just that - Microsoft Windows. I have no problem with MS enforcing a trademark on "Microsoft Windows," but over time they (and others) have abbreviated that to just "Windows" and now Microsoft is trying to claim that the unadorned word is not a generic. Well, tough, it is.

I should also reiterate my earlier point about the envitable confusion about what "X programming" is. "X" is also fairly generic, but there are billions of lines of code written to use the X Window System, and it's been commonly abbrievated to just "X" for close to two decades. Yet I'm already seeing indicators that "X programming" may refer to development for the very limited market, proprietary Microsoft X-Box.

So it shouldn't be hard to predict what I hope the judge will rule: "Microsoft Windows" can be trademarked, not "windows" alone. Ditto "Microsoft Word" vs "word," "Microsoft Office" vs "office," etc.

Apples and Oranges

[coyote-san]

The dates are very misleading... just ask some of the MS(tm) Trolls that pop up whenever this question comes up.

The X Window System was part of the Athena Project at MIT, and it was used internally and at other academic sites long before it was first commercialized. But it's that first commercial release which is always used as the "birthdate," cause thousands of users at academic or clued-in industial sites don't count.

It's also "X version 11" for a reason - when I first learned it there were still a large number of references in the documentation to an earlier "X version 10." I think I once read a history that said that X versions 1-7 were developmental versions that refined the API, and versions 8 and 9 were only used at MIT. Version 10 was the first one widely used. I've been expected an announcement of Version 12 for some time now, to reflect the tremendous improvements in graphics hardware, but for now everyone seems to be satisfied with the extensions mechanism.

In a world full of Gates, the date of first commercial release is the only thing that matters. But in the real world I suspect there were more users of X than MS Windows until Windows 3.1 was released in the early 90s.

And this brings up the second point. Bill announced Windows 1.0 in 1983. So what, talk is cheap. Windows 1.0 wasn't actually available until 1985, and it was totally unusable. Even with the fastest available CPUs and far more memory (at thousands of dollars) than the average system, performance was a dog and nobody was developing for it because of the incredible overhead.

MS Windows 2.0 was a bit better.

But MS Windows was not a viable system until 3.1, and some individuals make strong arguments that this was only because other companies were entering the same market with much leaner APIs. This was the early 90s (92?), and it was nothing but an application running under DOS. Same thing with MS Windows 95, although the relationship was hidden by then. That's why there's still some controversy (possibly even ongoing litigation) whether MS deliberately crippled MS Windows to fail with an unspecified "system error" if it detected DR-DOS instead of MS-DOS.

The bottom line is that there's just enough there for a lawyer to make these claims, but they don't stand up to even cursory examination. If you're cynical, you might even suspect that Bill made the announcement and first releases just to confuse the issue a decade or two later.