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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? :)
Didn't Microsoft aquire the rights to the english
language back in like, 1995?
Someone in Redmond is kicking themselves in the ass right now...
Now that judges seem to be a bit sensible, I think it's the right moment to send them a lot of similar cases: what about Adobe Illustrator? (remember the KIllustrator affair)
AFAIK generic words can only be the trademarked in conjunction with the companys name, like 'Microsoft Word'. Otherwise Microsoft could have sent its lawyers to every place where the term "X Windows" is used long ago.
I had something ineteresting to fill this space, but then Google found this article that does a much better job of proving my point than I could in this tiny text area.
First we have Windows. I've been waiting for Carpet, Ceiling, and Enclosed Screen Porch. Soon I will have my software house, with each item totaly incompatible with the other. . .
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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".
There was a similar court case in the UK recently.
McDonalds took Yu Kwan Yuen, a chinese retaurant owner to court for naming his restaurant "McChina". The judge was quite correct in ruling that McDonalds could not monopolise the prefix "Mc". It means "son of" in scottish, and Yuen had been living in scotland for some time and adopted "McChina" to indicate "Son of China".
But would he have named his restaurant McChina if McDonalds didnt exist?
This is a similar case to the Lindows situation. Although they are deriving their name from a generic source, they are (to some extent) stepping on somebody else's turf. I'm not sure what the right answer is, but certainly in the McChina case I think it wsa the correct outcome.
However, naming something Windows was a bad idea (again, for trademark law)
Sig: What Happened To The Censorware Project (censorware.org)
>>"I've always been bothered by Microsoft's habit of naming things using common words." Naming a product after an easily recognizable, representative word, even be it a common word, just makes sense for any company trying to sell said product. Granted, in the extreme, I think our shared concern is that Microsoft names their products after common words, such as Windows and Office, and then trying to bar anyone else from selling a commercial (software) product is a bit draconian. In the extreme, it's kind of like patenting the color black, air, or in an actual example, the hyper link.
Microsoft started using using common generic names after hiring a marketing suit named Rowland Hanson whose previous experience had been with Neutrogena.
Word & Chart, were the first to be name generically. What isnt commonly known is that Gates had to be argued and cajoled into using Windows, he wanted to call it "Interface Manager"
Incidentally, Hanson was among the first to throw software samples into magazines (freebie demo disks). Given his past experience, it was a small leap from throwing perfume samples in Cosmo, to program samples in PC Week.
My $0.02
I'm not sure it's such a good thing a trademark can be lost just on the basis of being a common word. I mean, a common word where, exactly? It's really not easy to think of a new name that doesn't sound utterly stupid, and then you run the risk that whatever you came up with actually _is_ a common word in some language. You could end up with many product names that can't be used in all the markets you want to use it.
And where do you draw the line? Is 'Red Hat' too common? 'Dell'? 'Ford'?
Of course, some due diligence is always required anyway: Honda apparently tried to name one of their models 'Honda Fitta', but found out what it meant in Swedish in time... With slogans like "Small outside but large when you're in it" or "It's a daily pleasure" it could have become a very real embarrassment for Honda.
/Janne
Trust the Computer. The Computer is your friend.
I realize that MS might not have as open-and-shut case as they want, but I doubt they'll lose this, simply because of the intent of the Lindows guy.
He's selling a directly competing product, with a name that differs from Windows by only one letter. This is perfectly analogous to trying to sell a competing cola called "Loca Cola", or some such. He's clearly trying to derive benifit from the "Microsoft Windows" trademark.
Actually, there are 5 approved names, as listed in X(7):
And no, it apparently doesn't predate MS Windows either. X was born in May 1984, although W (on which it was based) dates from summer 1983. The article claims that MS has been using Windows since 1983. Can that be right? I thought Windows 1.0 came much later than that. The Mac didn't even appear until 1984 (although the Lisa had been out since 1983, IIRC), and I find it hard to believe that MS had even thought of windowing systems before that. Anyone have any data to back up the claim?
"The invisible and the non-existent look very much alike." -- Delos B. McKown
The article referenced at the top of the page doesn't go into much detail regarding the outcome of the suit (which will finally be decided in a year or so), but here is an article that might be a bit more informative.
The most interesting part of that article is the following quote:
"'There's no evidence Windows is generic and strong evidence it's not,' responded Karl Quackenbush, an attorney arguing for Microsoft. He said Microsoft has spent more than a billion dollars promoting and protecting the name Windows. That includes sending letters to hundreds of infringers warning them not to use the name, he said.
In any case, he said, names such as Amazon.com and Apple -- two other generic words -- have been adjudged valid trademarks because they've acquired a 'secondary meaning' through their strong association to products."
So, even though Microsoft might not win the preliminary injunction, it is likely to win the case. After all, if Apple and Amazon were both held up as trademarks in court, it's likely that the ubiquitous "Windows" will be as well.
I, for one, will be glad if "Lindows" loses in court simply because it is confusing to say out loud. Try saying this out loud: "I'd like some help with configuring Lindows, please." I fully support anyone's right to create a new OS, but I don't support naming a product in a confusing manner (and playing off the name of a more popular product), which is exactly what Lindows is doing. This sort of infringement is what trademark law was designed to protect, and I think Microsoft will win this one in the end.
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Heureusement, je puis employer le français. Je trouve ceci beaucoup meilleur marché, parce que l'Acadamy m'ont donné non-pour-profiter-emploient le permis.
MS might have been working on windows since '83, but they didnt ship till about '86. More to the point, the copyright statement of winXP says '1985-2001', so they dont claim they wrote any code before '85
X-Windows came before MS-Windows, Linux runs X-Windows. The term "window" was coined along with the first GUIs of the 60s and 70s to mean a segmented rendering space on screen.
MS-Windows is called Windows because of that research, Apple Macs have "windows" into which you type. GEM had "windows", EVERY GUI on planet earth calls them "windows". Its a generic term.
An Eye for an Eye will make the whole world blind - Gandhi
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.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
X essentially developed parallel to efforts by Microsoft.
And before someone brings it up. No, the user interface of Motif was actually a copy of Microsoft Windows. Not the other way around.
Microsoft was part of the consortium, and licensed their UI for use in Motif.
This is why Microsoft Access is a remote access system and Microsoft Outlook is designed to support webcams. Frontpage is a program for designging print media. This is also why I have to hit the start button to shut down.
It all makes perfect sense now.
___
It's the end of my comment as I know it and I feel fine.
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.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
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I'm sorry, sir, but "aboot" is a registered trademark of Canada.
Microsoft in the past has argued that words like "internet" and "explorer" are generic, and can't be trademarked. All the while claiming (with a straight face) that "windows" is not generic, and demands trademark protection.
A little background. In 1994, a little-known Chicago area company called SyNet started distributing a web browser, called "internet explorer". Then, in 1995 Microsoft came out with its own "internet explorer". The Chicago company sued, and went bankrupt fighting the behemoth. Eventually, in 1998 Microsoft agreed to pay $5mil to settle the case (after SyNet had gone bankrupt, so they basically accepted anything that they could).
Hmm. There's two possibilities here.
One is that you picked up on the fact that the parent poster inexplicably switched his style of sarcasm - the "Outlook" and "FrontPage" examples were ones which would follow from the idea of choosing names that make sense, but which weren't true, while on the other hand the "Start button" example is true but wouldn't follow from that idea, and decided to comment on this in an indirect way.
The other is that you just failed to grasp that there was any sarcasm at all before posting a smartass reply. Given that this is Slashdot, I find this more likely.
Win dain a lotica, en vai tu ri silota
While not the final word on the question, this is a huge issue. As reported, the Microsoft saga with the United States Patent and Trademark Office reflects significant issues with the registrability and enforceability of the WINDOWS mark, although they were ultimately resolved in Microsoft's favor after an appeal. The TARR report there interesting relates that the windows mark is presently the subject of a, perhaps unrelated, cancellation proceeding before the USPTO.
But the difference between a straightforward trademark claim, and one where a serious challenge will be mounted to a mission-critical asset (such as the WINDOWS mark), makes a responsible company far more interested in reaching a settlement or accomodation. But this is Microsoft, who isn't even afraid of the United States Government.
Linux follows a long tradition of similar names.
In the begining was Multics.
Then came Unix, a pun on Multics.
Then came commercial puns such as HP/UX and AIX. And non-commercial educational puns like Minix. All careful to avoid the letters U-N-I-X to avoid AT&T lawyers. But it's important to remember that U-N-I-X is a meaningless word - the only thing remotely close to it is eunichs, itself a bad pun on the social life of most programmers but not a generic term in any way.
In this environment, it's natural that some punsters started referring to Linus's pet project as Linux. He didn't name it that, others did.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken