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A Setback For Microsoft In Lindows Trademark Case
One Louder writes "Lindows.com is claiming victory in an important ruling in the Microsoft case - the judge ruled that the jury must only consider the genericness of the term 'windows' prior to the introduction of Microsoft's products, and that a term that is generic cannot be made ungeneric. Of course, in Microsoft's home turf, the story has a different spin. In other countries, they're telling judges that Lindows.com is an imminent threat requiring immediate injunctions, while in the United States, they're dragging the case out, perhaps for years, by appealing issues in a trial that hasn't even happened."
Microsoft is dying
Is this tradmark case a separate action from the trademark case? Or is there a treadmark case invloved somewhere?
Windows is a trademark.
Lindows is a tradmark.
Completely different thing.
...while in the United States, they're dragging the case out, perhaps for years, by appealing issues in a trial that hasn't even happened
/. "editors" put a negative spin on everything Microsoft does? If Red Hat were in a law suit to defend their most valuable brand name, would you expect them to lie down and play dead or fight it? Of course Microsoft (or any other company) is going to fight something like this. Given that the directors have a legal obligation to provide shareholder value, it could be argued it would be illegal for them not to put up a good fight!
Why must the
Read reviews of shopping cart software
...it is a much easier issue. If it's a non-english speaking country, there is nothing generic about the words "Windows", "Word" and so on. Lindows is pretty clearly infringing in those cases.
Choosing a name that will get you on the losing side of a trademark disupte, guaranteed, strikes me as a pretty shortsighted thing to do.
Trust the Computer. The Computer is your friend.
Bite my shiny metal... oops... Nevermind!
'Windows' could be a trademark... 'windows' cannot!!
Michael Robertson is delighted to get his product's name splashed across newspapers.
Regardless of the merits of the case, even if the guy loses, he probably wins.
Now if Lindows was made by Microsofter and had the same designs on the boxes that would confise people purchasing the software, MS would have some case. But just one word?
Rosco: "If brains were gunpowder, Enos couldn't blow his nose."
in English speaking countries MS has not got a chance in hell to win this one.
Window is a generic term in IT industry before they even came with the idea to embrace and extend it from Apple and Xerox.
In non English speaking countries is a different matter, since the generic term for a window in an IT context(ventana in Spanish for example) is clearly different from the name of the product.
So to enforce the trademark elsewhere but the US, UK, Canada, Australia, Singapore, etc sounds like a hollow victory.
MS: just suck it up and get on with it!
IANAL but write like a drunk one.
The ruling can be accessed through Lindows's page, right here
Read the yahoo article and the one posted at Seattlepi.com and the (mal)practices of our media shine through in the reporting of this ruling.
Pragmatism as an ideology is not particularly pragmatic in the long term. Keep it in mind when you dismiss Free Software
And 'windows' was definately a generic computing term before MS took it for the name of their product.
IIRC, when MS first put out "Windows" they wanted that trademarked, but as it was judged too generic the actual name ended up being "Microsoft Windows". Or am I misremembering?
Anything windows-sounding is a tardmark.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
So "Lindows" is not infringing because windows is a generic word, not because it is too similar to Windows. Then, even a marketing a product with Windows in its name would be permissible. Lindows Windows?
...appealing issues in a trial that hasn't even happened.
First, I thought you could only appeal rulings. Second, if the submitter actually mean "rulings" instead of "issues", how would this be possible? "Your honor, I'd like to appeal the decision you haven't made yet in the case that hasn't been heard..." Third, there's a trial? Who's on trial for what? I thought trials were for criminial cases.
This is all so confusing...I guess it's time for me to get a law degree
I think he was trying to say that when a company has frivolous lawsuits with the only intended effect of causing financial strain on another company, that should be pointed out. What? Mod me down too? Go for it.
So we have the Microsoft Like OS, true and proud.
Then comes along the bike, or the Mike OS.
Maybe in the future the courts will make me ride a widget and use an alternative widget OS. Anybody else see this as idiotic in america?
1888 Franklin St.
Yeah, I think everybody should be able to name their products however they want to.
I just love to Edit my Pictures with my Fotoshop, use GRUE/Rinux on my Server and running the dieSQL Database...
Yes, of course Horray for Linux(TM), but would you appreciate it if Microsoft would release some tools with Longhorn called alike the free alternatives ?
Although this is hard to imagine - most OpenSource Desktop-tools arent widespread enough to get mixed up for home users - and they arent widespread enought for Microsoft wanting them to get mixed up -
I can imagine that everybody would shout at evil Microsoft.
I am a Unix/Linux fan but don't think you can blame Microsoft for that step
Spelling mistakes: My is english spoken not tongue of mother.
Sure it can. Apple, Gateway, Dell, etc...
It would be simply *impossible* for MS to prevail if the case went ahead on this basis. No-one disputes that 'windows' was a generic computing term before the introduction of MS Windows. The judge allowed them an option of appealing this ruling, and they are doing so. They would be mad not to.
Oh - and the Seattle Post-Intelligencer article reports the facts and is perfectly fair and balanced to both sides. It might have been an idea to put this link first, rather than suggesting that it is biased.
If that's the instructions given to the jury, then they can't possibly find for Microsoft.
The term "windows" - ignoring the obvious hole-in-a-wall - has been used since the WIMP interface (Windows, Icons, Menus, Pointer) was developed at Xerox PARC in the 70s (commercially available in 1981). Later developments of that interface - the Apple Lisa in January 1983, Project Athena (which generated the first versons of X) was set up in May 1983, and based X upon the preexisting W window system, plus others - were around before Microsoft Windows was.
Microsoft Windows 1.0 was announced in November 1983, and released in 1985. At a rough count I reckon that there were at least 3 or 4 prior windowing systems using the phrase "windows" generically prior to that - and specifically using it in the same sense as Microsoft use it, not in any of the other ways that the term "windows" can be used generically.
Moral of the story; when naming products, make words up... you listening, Firefox?
I have yet to see anything that changes my mind on this one.
Lindows was named Lindows purely to generate sales from the popularity/notoriety of Windows. Yes, the word windows can be considered an everyday word, but why does that matter? It is obvious that the product in question chose to mimic another products name, not a popular GUI format or home decoration. If that were the case they would have named it something like Toolbar or Chimney.
If Lindows actually wins infringement lawsuits then maybe it will be time for MS to fire their lawyers. So far the only positive arguments I have seen are along the lines of:
"Well, we prefer the term coup de grace to murder, and as such we can't really be tried on murder charges"
Whee signature.
Of course, in Microsoft's home turf, the story has a different spin.
Let me see if I understand this. You're comparing an article in the Seattle PI with a Lindows press release and you claim the PI is the biased one? I don't think you understand the purpose of a press release. Of the 3 elements here, you (submitter), PI article, Lindows press release, 2 of them appear biased. 1 of them is not the PI article.
...it doesn't change the fact the name Lindows was chosen to benefit from the ubiquity of MS Windows. If the question of windows being a generic term wasn't a factor Lindows wouldn't have a leg to stand on. The company is only trying to increase market share by riding on the coattails of Windows' well-known name.
informing Microsoft that no amount of marketing around a generic word changes the generic state of the word.
/.'ers still do.
Well, at least the Judge didn't fall for their marketing speech like many
I mean those little fanboys that post comments here desperately trying to defend M$'s position in this case. Why? Confusing patriotism with pride in products of a US monopol corp.?
This case looks just like Microsoft trying to step over its competitors with a worthless excuse. I don't remember Microsoft sueing Sun for the OpenWindows desktop that comes with Solaris.
I wonder why microsoft cares about lindows...
It would be simpler to just wait until lindows goes bankrupt or something. There is no real threat to windows.
I guess they know they cant be too careful (and of course they want to set an example for others).
Besides, maybe they hope this case is bad publicity for linux in general.
One moment Gates is all capitalist businessman, the next he's attempting to piss all over the market via government controls. Anyway, shouldn't it be Xerox and Apple suing for plagiarism?
Basically, his world view seems to be that he has enough money already, and will do things that he feels are right, irrespective of the consequences. This I highly respect him for, but I don't know that I'd like to have him running a company that I had invested in.
can they not claim the "Lin" comes from LINux, only leaving the suffix "dows" which MS can surely not claim trademark violation of :D
Any chance they could win by saying Lindows is a parody of Windows?
Windows was a *computing* term. So it is generic /in that context/.
This case isn't about whether windows (holes in walls) prevents MS from using the name, it's about whether windows (rectangles on screen) does.
J.
You're only jealous cos the little penguins are talking to me.
Common sense says that the underlying problem is that a trademark on "Windows" should never have been awarded to Microsoft in the first place. Lots of stupidity can be traced back to that decision.
It's not like the term "Windows" didn't have a generic use prior to it being turned into a trademark, nor can anyone sensibly claim that Microsoft was the first to use "windows" as a description for a way of displaying multiple applications on a computer screen simultaneously. Xerox PARC was using the term, and had a demonstrable windowing system, several years prior to MS first applying for the trademark.
As an aside, it's always struck me as strange that MS successfully patented "Windows", but no-one patented "mouse".
A sensible legal system would throw out the original "Windows" trademark as being invalid.
That's not the point; of course people can read the difference between "Windows" and "Lindows".
What might not be immediately apparent is the fact that they're entirely different products, sold by entirely different companies. Is it really a far-fetched possibility that someone less computer-savvy than the average Slashdotter might mistakenly think that Lindows is a low-cost/value version of Windows, both made Microsoft?
There's a Mercedes gap too. I want one and can't afford one, but it's not government's job to do anything about it.
BUT, in the case of microsoft it is used to describe a product... just as McDonalds & Ford are a generic names used to trademark food and auto items respectivly...
Thanks to file sharing, I purchase more CDs
Thanks to the RIAA, I buy them used...
So what do you do with GMC?
Would a company making engines calling itself Jeneral Motors Corporation be infringing on GMC?
The phrase "general motors" existed before the company. Note the brand difference between General Motors and General Electric... These names sound so generic that it's obvious that they do not infringe on each other's brand.
This is a TOUGH case. Nobody reasonable looking at the name General Electric thinks of the car company. Yet EVERYONE reasonable looking at Lindows thinks of the similarity to the Windows brand.
This kind of issue needs to be resolved on a case by case basis. Just the fact that "windows" was a computer term before MS Windows does not mean that it now doesn't posess serious marketing power.
To give an example, there was a Windows (95) beer in Russia. Unlicensed, of course, but the word Windows gave it a serious marketing kick in a different industry! That's a powerful brand, folks. And I think Lindows should pay some damages.
Much as I hate to admit it, maybe MS have a point. Think about why Lindows chose the name they did? Why pick a name that is very close to "Windows"? Why not pick a name which associated Lindows with Linux or UNIX etc, which their OS is technically much closer to.
The answer is that they were purposely avoiding those terms because they scare computer users. They picked the name Lindows because they new that users would associate it with Windows. So the user sees three boxes on ths shelf. Windows, Lindows, and Redhat. To the user, Redhat is scary and unfamiliar, they've probably never heard of it, or if they have, it's been in association with other scary unfamiliar things like Linux and UNIX. Windows is what they know, it's familiar and safe. Lindows, on the other hand, may not be familiar to them, but they might think they can safely assume that "Lindows" must be much closer to Windows than "Linux" is.
So clearly, Lindows are attempting to market their product by creating an association with another strong brand. "By Lindows because it's like Windows" is the unsaid message.
Users won't be confused between Lindows and Windows, but they will be confused into thinking Lindows is like Windows.
IANAL, so I don't know if that's actually illegal, but to me, it seems rather dishonest - as their product isn't in any way associated with Windows. And it was clearly intentional. They presumably would never have called their OS "Lindows" if it wasn't the case that Windows has a near monopoly on the desktop.
Of course, I still hope that Microsoft lose. They are by far the greater evil.
So was 'ford'; what's your point?
There's a Mercedes gap too. I want one and can't afford one, but it's not government's job to do anything about it.
This is just a huge amount of free advertising for Lindows.
badgers and mushrooms
I don't think Henry would mind if I started making "Lord" automobiles. The Pope, maybe...
Money for nothing, pix for free
It is very simple. You cannot trademark a generic term. M$'s own dictionary describes "windows" as a generic term for OS windowing systems. In my country (UK), M$ have to specify a generic category which they want to protect their trademark for. They have specified it as windows software for microcomputers. Windows has been used since the 1950's in computing to represent portions of a display. Micro and soft are common abbreviations listed in some dictionaries. Therefore they themselves know that "Micro", "Soft" and "Windows" are clearly generic terms and have no leg to stand on in any attempt to protect either the mark "Windows" or "Microsoft".
Joe Llywelyn Griffith Blakesley
[This post is in the public domain (copyright-free) unless otherwise stated]
Hommer Simpson: "I know a genuine Panaphonics when I see one. And there's Magnetbox, and Sorny."
Actually I went on holiday to some for off place once and saw a genuine "Panaphone" phone myself. I have to say I did n't notice the knock off name by the spelling but by "hmmm, this does n't look like a Panasonic"
I just remember seeing people using Sun workstations for the first time, when they logged in for the first time and were asked to choose a graphical environment, most of them mistook OpenWindows for a "Windows made by Sun", and ended disappointed when saw that it wasn't even a bit like MS Windows. One of the problems with words that sound alike is the people that tend to be confused about them.
Its a great idea, but the law in most countries that a mark in a foreign language is still not registrable if it is merely descriptive (without acquired distinction) or generic, AS TRANSLATED.
Windows Icons Mouse Pointer
This acronym for the new world of graphical front ends was coined pre-Micro$oft.
Microsoft + windows = Microsoft Windows
Linux + windows = Lindows
Or does Microsoft dictate how a company chooses its name.
or doesn't that matter to M$?
I don't get it..?
I think Microsoft may well have the better legal argument when this goes up on appeal, although I haven't researched the question. It is well settled that a mark, today, though not generic tomorrow, may become generic and thereby be invalidated. This "genericide" has happened to famous and world-class marks, in particular ASPRIN and SINGER.
Clearly, genericity is temporal in nature and at least for the genericide cases, it is generally genericity at the time of infringement that is measured, not the time the mark was created. Thus the question appears to be whether a mark, once generic, can become ungeneric at a later time.
And I had thought that question was also well-settled, in particular, in the SINGER case, where the mark (once people stopped calling sewing machines "singers") was held to be resurrectable.
Note that the court order certified the question for interlocutory appeal. We may see the final word on this before trial.
>Take a look at his original distribution of 'Lindows', ... It had wine coupled with it so you could install office 2000 if you so desired, ... wine is no longer a part of the package.
Really?
That's interesting. I hadn't heard anything about their dropping Wine.
How can you run Windows applications on Lindows now, then?
What did they do to replace it?
I don't know the meaning of the word 'don't' - J
Yes, it would, but it would have no claim on the Montague family fortune, so it would in fact be a horse of a different color.
There's no rule against mixing metaphores here on Slashdot, is there?
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
...I think "another Windows critical vulnerability" will become a generic term as well.
Do we really want cheap knockoffs with substandard goods everywhere that name themselves "Seers" and "Searz" and "Cears" and set up department stores right next to every Sears?
Do you want to order your insulin from a reputable pharmacutical company, or from a similarly named "front" for some shady mexican company?
"Lindows". Lol. What a sad joke.
Wine is still available, but no longer installed by default. They moved away from running windows applications at all. The biggest deal behind it was running Office on Lindows. That was replaced with Open Office if memory serves.
Frankly, I find their lawsuit far more interesting than their software. It's fun to root for the little guy anyway. Right or wrong, I hope they win if only because it will make the world that much more interesting, whereas their software products in my opinion aren't changing the world in any significant way.
If this were Usenet, I'd killfile the lot of you.
> "And 'windows' was definately a generic computing term before MS took it for the name of their product."
So was 'ford'; what's your point?
I'm sorry? When did Microsoft Ford come out, and what was a 'ford' in computing terms before MS started using it?
Oh, you meant the car, did you?
Same goes. A ford was never a generic term related to the art; that is, a ford was not a type of car, or a part of a car or carriage or waggon or anything. Therefore "ford" could be trademarked with relation to cars, because it had nothing to do with cars.
"Windows" was a generic computing term. A window existed as a generic concept for a box on the screen with stuff in it. Microsoft Windows was so called because it used windows in the computing sense. Therefore "windows" is not trademarked, because it has something to do with computers.
Do you understand yet, or would you like me to try again in words of one syllable?
"And 'windows' was definately a generic computing term before MS took it for the name of their product."
So was 'ford'; what's your point?
Trying to work out what you could mean but not doing too well. I'm sure you don't mean that ford has ever been a generic computing term. Are you saying it is or used to be a generic car term? If so then what did it mean?
Ford used to be a generic term too (tho of course not necessarily computer term). The grandparent poster was trying to make the point that terms previously labeled generic, such as 'windows', cannot be trademarked.
I think lindows should change their name and give MS the finger. Use the publicity to cry to the world about how MS misused their powers to hijack a common term like windows. They could ofcourse still continue the trial but since lindows has been forbidden in clueless countries like holland, sweden etc i think they should change their name to Lindesk or something.
To be affiliated with the MS Windows name isnt such an advantage in my book. Why would you want to be connected to high prices, bad software, total absence of security and a big contempt for customers needs?
HTTP/1.1 400
Do you suppose this ruling will impact other products using words that were generic before the product was named? If so, Microsoft has plenty to worry about. Look at their flagship products:
Office
Word
Excel
Access
SQL Server
Outlook
If "Windows" can't be protected on the basis that "windows" was a generic word before it was trademarked, what will protect the other products? I'm not meaning to pick on just Microsoft here; there are lots of software products that use generic word names. Will all of them have to be renamed?
Sometimes I worry that I'll develop Alzheimer's disease, but no one will notice.
Next thing you know... Microsoft is suing Home Depot for selling windows...
My Karma is so low that even my own postings are beyond my current threshold
I prefer my metaphors scrambled, thank you.
And you, madam, are very ugly. In the morning, I shall be sober.
Ventana = window.
raton = mouse
presionar = to click
octeto = byte
base de datos = Database
memoria = memory
PC = computadora personal
diskette = floppy disk
disco duro = hard disk
tarjeta = expansion card
pantalla = screen
impresora = printer
lenguaje de programacion = programing language.
leguleyos imbeciles = SCO
etc,etc,etc.
I learned computing in Spanish, with many terms translated (sometimes unfortunately, as I think byte should be byte for example, not the horrid octeto).
In such a context they may be a point that Lindows and Windows may be confussing.
IANAL but write like a drunk one.
It saddens me that Microsoft even tries to justify bitter, impersonal attacks every time someone or something does anything they dont like nor want. Their behaviour could be taken in parallel to how your unfriendly neighbourhood rottweiler barks incessantly when someone outside of the family circle walks by minding his own business. I dont believe Microsoft is under any threat, niether from Lindows nor Mike Rowe Soft for that matter. In fact, Microsoft knows the computing world's end users are made up of 99 percent Windows junkies. They are capitalising on these sheep-like peoples' relative incompetence by making absolutely certain that no computers in computer stores have any operating system other than Windows installed. In fact, your average office secratary and the vast majroity of end users rarely know the difference between an operating system and the computer itself. Microsoft is trying very hard to ensure that when consumers see computers for sale that there is Windows on it, 100 percent of the time. Picture it in this sense: When last have you been into a computer store and seen a Linux/Unix-based operating system? If it's free, why arent people using them? Microsoft tries to squash anything that poses even a minor threat by throwing millions of dollars at the problem. Microsoft's complaints, as usual, hone of blaitant unfounded monopolism, and this should not be allowed by any government. I vote in favour of Lindows and Mike Rowe Soft; they dont deserve these unfair attacks from Microsoft. Monopolism does not stimulate an economical growth whatsoever. I'd bet Microsoft couldnt care less about that minor detail.
Lindows is quite obviously an attempt to use the popularity of the "Windows" brand name to promote their operating system. There's really no other reason. XWindows is a GUI shell, not an entire OS - the idea that that's the same as Lindows doesn't fly, since Lindows is being billed as a brand-name operating system.
If this was a farce, a parody, that'd be fine. But it's also obviously not that.
The fact that Microsoft is supposedly so bad does nothing to make this more acceptable or right. It's wrong. MS already got what it deserved - give Lindows what it deserves.
A really hard rollicking.
i'm amazed that i survived - an airbag saved my life.
IANAL and this pertains to US (maybe others). No it would probably not be OK to advertise or sell a car from a company called Yolkswagen because Volkswagon is a registered trademark. You also could not sell software named Microsloth Windows because Microsoft Windows is a trademark and there would be confusion. The question is whether Microsoft can claim a trademark on the word "windows" in the context of software. I believe that Xerox called their invention that displayed a window-like object on a screen a "window" and I believe that Apple also calls their window-like object displayed on a screen a "window" -- and they both used the term "window" prior to Microsoft trademarking and selling a product named "Microsoft Windows". Trademarking the word "windows" is the same as trademarking the word "automobile". Imagine Acme Automobile (TM) suing Smith Automobile (TM) for trademark infringment over the word "automobile".
And that is that the word "windows" alone is a generic term in its context (i.e. IT industry) and thus not trademarkable.
So Winblows,WindowsCraze, EvilWindows, TrueWindows, MiniWindows and so on are not infringing in the beast of Redmond's trademark: "Microsoft Windows".
Neither is Lindows, at least in english speaking countries.
IANAL but write like a drunk one.
Even if microsoft cannot trademark the word "windows", its perfectly fine for them to trademark "windows 95", "windows 98" or "windows xp" which they probably already have done. The term windows by itself does predate windows 1.0 since it was used commonly to refer to macintosh folders(ie "open a window).
I think their case against Lindows is a bit iffy.
A reasonable case can be made that Lindows is trading on the commercial reputation of Microsoft not just using the term windows in a generic manner.
However even if this is true both the Apple Macintosh and Commodore Amiga were using generic "windows" before the Microsoft product ever came out.
Lindows is on its right to choose a generic term in the IT industry (windows) to name their product.
If that happens to coincide with another company's product name, which is not trademarkable because they are using a generic name, then it is not theor fault, but the fault of the first company to fail to choose a name that was defensible under trademark law.
You are completely off base.
IANAL but write like a drunk one.
We'll call it "Lindows for Lurkgroups"!
Take the free Xbox and run!
your friend,
Mike Rowe
I think Lindows should pay some damages.
For that to be reasonable, damage would first have to be done. Since nobody has actually bought Lindows instead of Windows, no damage has been done. I therefore suggest the courts awart Microsoft 1 cent in damages and order them to pay costs.
"One of these things is not like the others... one of these things doesn't belong... one of these things......."
Clothes make the man. Naked people have little or no influence in society - M. Twain
I agree with previous posters that Microsoft merely publicizes lindows by taking legal action. It really represents no threat to them. Even if they win (in court), they lose (in business).
Microsoft looks like it has fallen into the elementary trap:
Never argue with an idiot, bystanders cannot tell who is the idiot.
I hope the entertainment doesn't end soon. I'm sure the lawyers on both sides are working hard at not settling and thus maintaining their income. Just view it as a long-running joke and laugh.
Who let the BSA have all the moderation points?
The only way to get around this obstacle is if you can show that the trademark is already "well-established" or "known through extensive use", which roughly means that if people in the relevant market segment would associate the name with your product anyway, then you can have it registered as well.
On these grounds, presumably, Microsoft now has the mark Windows registered in most, if not all, countries. Whatever one may think about Microsoft in private one has to admit that both they and Windows are pretty well known, so it's hard to argue against the fact that they got these registrations. Note that it is not because of some evil conspiracy that Microsoft could get the registrations through because they were rich enough to make the name well known, but that this is explicitly part of the trademark legislation, and should be like that.
When it comes to determining if Lindows infringes on the Windows trademark it starts to become real interesting (if you're interested in trademark similarity, that is).
First of all, if it had been two "invented words", like Lindows vs. Pindows, I don't think there's much doubt at all that they would be found to be in conflict with each other (if it had been for the same type of goods, like in the Windows/Lindows case).
However, since "windows" is a common everyday English word, and Lindows is clearly an invented word, the likelihood of confusion is much less than it would be between two different invented words, and you could well argue that the two marks should be able to coexist on those grounds. In practice this means that the level of protection you get when you manage to get a descriptive word registered because it is well-established tends to be lower than it would be for an invented word.
However, on the first side again, there is also the fact that Windows is not only a "well-established" mark, but actually a "famous" trademark, which should be awarded an extra level of protection, beyond what ordinary marks get. (This is also explicitly part of the trademark legislation, so again, no conspiracy. ;-) )
But on the other hand, is there really any risk at all that a consumer wouldn't notice the difference between the trademarks when he was standing with a cellophane wrapped box in his hand?
But then again, and so forth...
Not too easy to call this one right, I think, and I wouldn't be surprised if there is almost as much disagreement on the issue among trademark lawyers as there evidently is here on Slashdot.
But he who reads Slashdot will no doubt see what the outcome will be.
IANATML, yadda yadda, but I have worked for 25 years with building phonetic trademark search systems, so I am at least somewhat familiar with the area.
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
Let me get this straight:
Microsoft files a lawsuit against Lindows.com to shut them down before they release a product.
The Judge rules against them.
They ask the Judge again to shutdown Lindows.com.
The Judge rules against them and includes language suggesting that windows is a generic word.
Two years go by with lots of legal wrangling, but there's going to be a trial where Lindows.com asks to *invalidate* their windows trademark which MS claims to have spent 1.2B on. This means anyone can use 'windows' ANYWAY they want if they lose.
Now the Judge says that the time period to look at to determine if windows is generic is PRIOR to MS product AND if it's generic then (which it was since that's why MS chose the name) it's generic now meaning their trademark certificate can be gently placed in the shredder. No valid trademark = no trademark infringement. Lindows.com wins the case AND invalidates MS's trademark!
Uh... somebody has to remind me why the hell MS brought this case and why they are continuing to pursue it! This is like one of those runaway company projects which once get started people can't stop because it builds up its own inertia.
Microsoft must have the most incompetent legal advise. And did I mention that all their antics just make more publicity for Lindows.com who is appearing more and more like a real threat everyday?
This is why big companies invariably fall to small challengers. Because they do stupid things.
Enjoy driving around in your Yolkswagon Getta...
I'm going to relax listening new panaphonic stereo... maybe catch some TV on my new magnetbox, and perhaps even play around with my Sorny laptop for awhile...
The Simpsons was a little broad about the point of offbranding items with similar names, but it's not like it hasn't happened in other industries before. When nobody is mistaking product X for product Y, there shouldn't be a problem.
Is that while Windows may not be a generic term in your language, it is still a generic term in computing.
Do you not have the X Windowing System in Sweden?
If "Windows" is copyrightable for a windowing operating system in Sweden, you are going to have other problems. For example, could not Lindows rename themselves as "L" in sweden, and then release L X Windows? X Windows is quite definitely a component of Lindows' product. That may not be its official name but it is a common name.
What about persons which sell X Windows servers? Are they allowed to name their product "COMPANYNAME X Windows"? I do not think it would be hard to argue that a significant portion of the UNIX-using community in Sweden would find the term "X Windows" to be common, and I think it would be odd to argue that the UNIX community cannot use the term "Windows" in product names when they have been using that term internationally in product names for longer than Microsoft.
- Super Ugly Ultraman
just because somebody wanted to name their operating system after the type of interface they use, doesn't give them a right to patent it... that would be like me calling my operating system "menus" and having a completely menu-driven interface, then claiming that the name is my idea and I should have sole rights to it...
now watch microsoft come out with Microsoft Menus Server 2096... hey, rolls off the toung better than Microsoft Windows...
Burkle Durkee, Burkle Durkee, Burkle Durkee
I think this shameless plug is apropos.
Bow Chica Wow-wow
I've often wondered about these "weird" versions of windows. I've never seen a windows 1.0, actually never a 2.0. At one point it was simply DOS, and various DOS-shells... then windows 3.1 came up and we used it to run office products.
Anyone have a copy of windows 1.0, how about some screenshots. It would be an interesting insite into the roots of windows itself, as I think that the early versions were not very prevalent nor popular until 3.0/3.1
So it's very OK to call your loudspeaker design firm Hydro (Hydro is agriculture/aluminium/etc/etc), but it's not OK to call your upstart ISP Telenord (there is one called Telnor).
I say Microsoft really has a case. Lindows enters exactly the same market as Windows. It doesn't really matter if it's in the US or elsewhere, Windows is something my mother associates with buttons, menus and blinking cursors. It would probably be OK to call the Firm Lindows, but the product needs a new name.
So could they just change the name from "Lindows" to "Linux Windows"?
If "X Windows" is okay, then I can't see why not, although I think that would probably irritate Microsoft a lot more. Hmm... that sounds like it may be the better option.
Would a company making engines calling itself Jeneral Motors Corporation be infringing on GMC?
Of course they would be. "General motors" in not a common phrase by any means (at least, I've never heard anyone use it, maybe it has a specific industry meaning). Not every car has a "general motor" in it... but every GUI has "windows".
The reason that's not a valid comparison is that it's not the General(R) Motors(R) Corporation(R); they make no claim to the word "motors" specifically, only as part of their title.
Just the fact that "windows" was a computer term before MS Windows does not mean that it now doesn't posess serious marketing power.
On the other hand, just the fact that it posesses marketing power doesn't mean it's a valid, defensible trademark either--otherwise there wouldn't have been a case at all.
You can't ask for damages where no damage has occured. Microsoft filed this lawsuit within days of the formation of Lindows.com as a corporation - they hadn't even shipped their first product.
So it is kinda analogous to the genericness of "Microsoft Windows," at least with respect to how Lindows is doing in non-english countries (at least the ones which don't use the term "window" to describe a GUI element).
In the language of the Americas, we call them ventanas.
"Who needs DOORS, Windows or Gates?". We looked for, but never found, any more software packages with names relating to points of entry through barriers.
How about BSD Ports or Gentoo Portage?
Even if you compute in a foreign language, most programming APIs are based on English, and most GUI APIs will use the term "window."
it seems like the core of their argument is that 'windows' is generic and not trademarkable rather than that 'Lindows' is sufficiently different than 'window' to not pose a threat. If they win the first argument, Windows can no longer be a MS trademark but that seems like a pretty big hurdle to leap. Seems like it would be safer to go with the 'Lindows' isn't 'Windows' argument which seems very reasonable.
This reminds me of the political cartoon that showed Richard Nixon nailing himself to the cross. If Windows.com gets bled dry, it will be from a self-inflected wound.
So in order to remove the argument that "Windows" cannot be considered a trademark, all MS should have to do is prove that it has name recognition in the general public. Once that is proven then the mark is distinctive rather than just descriptive, which falls into the realm of what is allowed to be trademarked.
That's not quite right. You have correctly stated the law for "descriptive" marks. Those can be registered upon showing of secondary meaning. But there is another category called "generic" marks. These marks are marks that are so descriptive that the mark itself names the class of good the mark is used for.
For example, "WATER" would be generic, and "CRYSTAL CLEAR WATER" would (possibly) be descriptive. Under US TM law, "CRYSTAL CLEAR WATER" could (possibly) be registered upon showing of secondary meaning, but "WATER" could not ever be registered because it is generic.
In the Lindows case, Lindows argues that "WINDOWS" is generic and is therefore not a valid TM even upon a showing of secondary meaning.
"Since nobody has actually bought Lindows instead of Windows"
And you know this is true how?
Bah, but you can't extract oops.
Note to moderators, consider reading parent posts before moderating something as flamebait. Using someone's own words against them isn't in my definition of flamebaiting, even if they used profanity originally.
Never confuse volume with power.
.. the newspapers read you!
I remember back in 1998 when Microsoft was trying to trademark Internet Explorer...but it was already trademarked by a small company who then tried to sue Microsoft and protect their name before they went bankrupt from legal bills. One of the defenses Microsoft used was that the term Internet Explorer was generic and could therefore not be trademarked.
Otherwise Windows IS trademarkable. Have a look at this nice table of trademark categories.
Whether or not Microsoft has a case against Lindows is another topic altogether.
Time to create a new icon for Lindows stories, since it's beginning to look like Mike Robertson's brainchild may have some staying power...
"How many light bulbs does it take to change a person?" --BMcC-->
Being around too long, I remember when "Microsoft Windows" came out. At the time, there were several competing systems that ran on top of DOS: GEM from DRI, TopView from IBM, and (I think) DesQView from Quarterback(?). They were all referred to as "windowing" systems in the magazines.
If anything, MS tried to confuse the playing field by choosing Windows for it's name in the first place.
Must be because it is dark most of the time during winter. Here in the south we associate Windows with Sunshine and ability to assertain at a glance what is going on outside.
As an aside MS co-opted Windows as a means to make it immediately clear what they idea of the software was. This is fine but the took something from the Commons in that process and they need to live with the consequenses.
The flipside of using a generic name is that it stays generic and you can't take it. Get a benefit at the onset pay the price later. Simple as that.
They could have picked a meaningless name or a novel amalgamation Like NetScape and they would have had a slightly steeper initial climb but easier task of protecting it.
Help fight continental drift.
.. for ripping off Apple.com's site design? Oh, right, because the colors are different. A little bit.
It's not a lie. It's the truth with lossy compression.
.. if you can google for it?.
While you are at it, look for "neologism" as well.
IANAL but write like a drunk one.
And you know it.
When people say or think about operating systems and someone mentions Windows, Microsoft Windows is what they are talking about.
Sorry that you think its too generic a term. But "Apple" is ok? Both are pretty common words. Should Apple have to rename themselves to "Red Delicious" because their name is too generic now?
"Windows" as the product name of an operating system = Microsoft Windows.
Pathetic company trying to bite scraps off of Windows fame and fortune = trademark infringement.
How about some other new OSs? Are these names ok too??
- Lapple Lacintosh ?
- Lovell Letware ?
- LAIX ?
- LOS/400 ?
Use your brain and some common sense.
Sue Marvin Windows, And Anderson Windows to protect the Microsoft Windows trademark.
[Now, I'm off to lift my le... Um, visit... at another place.]
Try reading this Seattle P-I article written by Todd Bishop.
You linked a follow-up article direct from the AP wire.
Actually, it's Quarterdeck's DesqView IIRC.
The first word processor I ever used and loved was Magic Windows on the Apple II. It was the top word processor in 1981 as well as being in the top 20 overall for the computer system that year.
;)
a 81.html
And even though it was text based, it had pull down menus.
Pull down menus...has Windows in the name...
Hmmm... maybe someone should inform its creator they may have a case.
Source of 1981 info was taken from...
http://apple2history.org/history/appy/ah
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Care killed the cat, but satisfaction brought it back.
Yes, that's right (and it does sound a lot better than "quarterback").
You are completely wrong is saying Windows and Lindows are homonyms. If the program was called Whindoze, that would be a homonym. All you have demonstrated is that the two words rhyme.
As an aside, this is not the first time a word has been knocked back because it is generic (which is different to a word found in a dictionary). I seem to recall that a while ago Nike tried without success to trademark the word "air" when competitors tried to release alternate versions of their famous Nike Air runners.
If the pattern goes 9am, 10am, 11am, why isn't noon 12am?
The article referenced is from the Associated Press. OK, the PI is paying to have those bits shipped out, but they didn't write it.
I would expect both the Times and the PI to cover the issue in tomorrow's editions.
L.I.N.D.O.W.S LINux Distribution Operating Windowing System Suck on that MS....
READY.
PRINT ""+-0
Marketing power doesn't redefine law.
General Motors is awarded a trademark because they were the first to use it as a brand name within their particular industry.
Microsoft Windows is akin to Coca-Cola. Windows is generic, as is cola. The prefixing of the word renders it non-generic. However, Microsoft suing Lindows.com over "LindowsOS" sounding like "Microsoft Windows" is as reasonable as Coca-Cola suing Pepsi Cola because they both use the word "cola".
Hah, only on slashdot would prime comments like that be moderated as troll. Morons. Reminds me of why slashdot is taking a downhill course these days.
And in related news, "Curious George" authors H.A. and Margaret Rey filed suit today against Linux vendor "Red Hat" for infringing on the name of their "Man in the Yellow Hat" character...
Made something of himself stealing or buying up the technology that he claims to have created.
Dos - Bought from CPM
Windows - Developed out of Work with IBM - OS/2 and stolen from Apple (who happened to steal it from someone else).
Excel - Bought from a company that I do not remember the name of
Powerpoint - ditto Word - ditto etc, etc, etc.
Bill Gates cannot even claim to believe that the mouse would be a usable product even. He stated back in the mid to late 80's that it would never be a usable product. Hmmmm..... the great innovator? The only thing he innovated was a good marketing monster.
I do not think he is the devil incarnate either, but I would love to see M$ broken up and him being penniless and destitute. Vindictive, yes..... in reality, it will not happen unless we get someone with some intestinal fortitude.
I'm guessing from his use of "computadora" rather than "ordenador" that he is Latin American. Some of the 550 million or so people on the American continent other than US citizens are also 'Americans' and hence like to use a different term for you lot. I'd never really noticed this in Canada, where (in my experience) they happily refer to you as 'Americans' and themselves self-deprecatingly as 'Canucks'; it seems to more of a Latin American thing. 'Yankee,' you must agree, would be horribly insensitive to apply to anyone from the southern United States.
Back on-topic, there's an interesting article on ZDNet on how English tech terms are seeping into Spanish. Oh, and I'm neither 'American' nor 'USian' myself, I'm an EUian, e.g. part of Greater Germany ;-)
Damn glad I moved from Columbus or Cowlumbus(either spelling is acceptable
The point is that Microsoft is *dragging* out the case. They wouldn't do this if they thought that they could win. Then they would just get their ruling and go home. Remember that the basis of a trademark claim is that they are suffering ongoing damages by the confusion of their trademark. If that is so, they should be trying to *hurry* the trial and get injunctive relief as soon as possible.
The only point in dragging out the case is to hope that Lindows will decide it is cheaper to settle than to continue the case. As such, the moves to drag out the case are themselves evidence of the weakness of the Microsoft case in the US.
If Red Hat were suing a software company that named itself Blue Hat, I would expect them to expedite the trial as much as possible. They would base their claim on the identification of themselves as the Linux distro named after a colored hat, and I expect that they would win. The difference being that Red Hat is unique to them and has nothing to do with their actual business -- it is just a label that they made famous through their actions. By contrast, if they had named their company Red Disk, I expect that they would lose a suit against a company calling itself Blue Disk as a disk is a generic term related to what they actually do. I would also expect them to lose against Blue Hat if Blue Hat were in another industry (consider Blue Bonnet butter/margarine for example).
Microsoft's problem is that they pick non-trademarkable terms (in their industry): Disk Operating System, Windows, Office, etc. Even Excel is a play on the word Cell. Yes, they can keep people from using Excel but could they keep someone from using (for example) EasyCell?
Microsoft would have never received the original trademark? As it is confusing to the market to call your windowing system Windows when other companies can also release windowing systems (and had at that point; X-Windows was already around by '93; I used an early version of it in '89). Understand that this is the crux of the case at the moment: the question of Microsoft's ability to trademark Windows *at all*.
It is reasonable for your (presumably not native English speaking) mother to associate windows with buttons, menus, and blinking cursors...those are all characteristics of a windowing system. That does not translate to mean that she should associate those things with the *Microsoft* OS that includes those. Both MacOS and KDE (a Linux windowing manager; in fact, the one used by LindowsOS) also include buttons, menus, and blinking cursors.
Also, the product is called LindowsOS, not Lindows. Get the difference? It is the Lindows OS. OS being a generic term in the software industry; Lindows being the firm's name.
In regards Telnor, what would happen if someone called their upstart ISP Webnor or Teloslo? Both those names are assembled in similar fashion to Telnor (or Lindows: LINux, winDOWS) but are distinctive. Would Telnor have a case against either of those? I think that you are simplifying this far more than one can.
Look here: http://folklore.org/projects/Macintosh/images/pola roids/polaroids.8.jpg
~hylas