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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? :)
Someone in Redmond is kicking themselves in the ass right now...
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)
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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
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.
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
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).