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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."
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
Read it again. One Louder, who submitted this story, put that in. However, timothy didn't cut it out.
They stole, as you put it, from Xerox, not HP.
>> However, in the United States of America, Microsoft has never been able to trademark the term 'Windows' in any fashion.
Actually, both Microsoft and Windows are (R) registered trademarks of Microsoft within the United States. If you pull out your CD's you'll notice that both have an (R) by them...
http://www.microsoft.com/mscorp/ip/trademarks/wing uide.asp
Pfft... I think not. It's even a registered trademark in the US.
Please follow these guidelines when making reference to Microsoft(R) Windows(R) brand products, including but not limited to: Windows(R) 95, Windows 98, Windows 2000, Windows Millennium Edition (Me), Windows CE, Windows XP, Windows ServerTM, Windows NT(R), and Windows MobileTM.
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.
No, it doesn't.
...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.
Second, if the submitter actually mean "rulings" instead of "issues", how would this be possible?
The ruling in question is that a jury will only be able to consider the pre-1985 meaning of the word "windows", and not it's current use as an operating system brand name. Microsoft want the eventual trial to be held using the current use of the word - which would automatically imply that it had the right to trademark the word in the first place.
In essence, Lindows defense appears to be resting on the idea that Microsoft has no right to trademark a generic term. Microsoft is arguing that it's too late now, and as it got away with it for so long, it's become a new de-facto standard term for an operating system. The appeal is specifically on the ruling of which definition of the word is to be used. (again, IANAL and all that!)
The ways of gods are mysteriously indistinguishable from chance.
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.
And if you mean stole as in Bought The Rights And Had Xerox Buy Heavily Into The Company That Obtained The Patents, that would too be correct -- well except for part about applying this to Microsoft.
Parody is a defense for copyright infringement, not trademark infringement.
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]
Actually, I think I do know a couple thinks about trademark infringement, at least in the US, even though IANAL.
:P
From what I remember about US trademark infringment laws you have to show:
1) Similarity of two marks, either in sound, appearance, or underlying meaning
- Lindows, Windows - I see phonetic similarities, they appear similar. No underlying meaning because Lindows doesn't mean anything, but 2 out of 3 is still one more than necessary
2) Strength of plaintifs mark
- How big is name recognition on "Windows"?
3) Similarity between goods and services:
- while a car and a software suite are incredibly dissimilar, the same is not true about two OS packages, or desktop environments, which ever you want to classify these as
4) Intent:
- Did Lindows intend for their product name to be similar to Windows...? This one seems fairly obvious
5) Confusion: has there been any confusion by the customers over these two products:
- this is the only one I can't verify as I haven't looked to deeply into the proceedings. But then, there are customers that buy their computers with the Internet inside, i wouldn't be surprised if some bought Lindows machines either thinking that Windows was mispelled or not thinking at all
A couple things that are optionally included are things like relative distance on shelves of said products, the degree of care excerised by the consumer, and the likelihood of expansion of the product lines.
Now, as far as whether Windows could be considered a trademark or not, I originally thought that this was the only weakness in the issue, but after a little research i found some interesting stuff:
A word that is merely descriptive is not a mark and therefore cannot be Trademarked. However, if a descriptive word becomes distinctive it can attain a secondary meaning. meaning that although the mark is descriptive, it has customer recognition value for a single product/etc. The way a descriptive word gains this second level of meaning is tyhrough advertising and long use.
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.
On a side note, the same is true for using names. Until a name has the distinctive second meaning it cannot be trademarked. Thus if Ford were to have started making cars yesterday, there name would not be able to be Trademarked until they had received an adequate amount of name recognition from customers, at which point it gains that second level of meaning and could then be considered to be distinctive and trademarked.
Note: There are some grammatically imprecise sentances in there because I was trying not to use my new word "Trademarkability"
Whee signature.
Considering it says Microsoft nowhere on the box, and the name starts with an L instead of a W, I don't see how - unless you're so imperceptive that you deserve to buy the wrong product - you'd confuse the two.
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.
As I recall, Microsoft tradermarked 'Microsoft Windows' and were explicitly told that 'Windows' would not be trademarkable. Whereas Mr. Robertson sells his product as 'LindowsOS'.
I recall that as well. In fact, I even recall researching it at USPTO.GOV, and confirming it. So imagine my shock when, in a recent /. debate, I was told that this was not the case, with provided USPTO.GOV links. I searched again, and could no longer find the restriction.
Specifically, I recall that:
- Microsoft's first application for the trademark was in 1983 for some sort of audio visual software, not for MS Windows-as-we-know-it.
- That the granted trademark for the "graphical computer user interface software and related manuals" was specifically for "Microsoft Windows" and/or "MS Windows" not just Windows.
- There was a "restriction letter" of some sort that limited their mark to 1) including a logo, and 2) including their name or initials, and/or some product designation (e.g. Windows NT) for which they may have had to apply seperately.
But this isn't what the second search seemed to show.I've got no idea what happened, but I'm glad someone else remembers it the way I do.
-- MarkusQ
Macintosh, too, is a common noun.
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.
I think it still does show (more or less) what you're thinking of. The first registration I can find for MICROSOFT WINDOWS has a 2(f) claim, meaning that WINDOWS was registered on the basis of acquired distinctiveness. Essentially that in the abstract, the element WINDOWS was not registrable and thus subject to disclaimer- the 2(f) claim cures that by asserting that it is distinctive in the marketplace in spite of that. It only requires that the term be in "substantially exclusive and continuous use" for the previous 5 years, and such an assertion by Microsoft is sufficient to forgo any further PTO analysis of the issue. The registration also includes a logo.
Anyway, I have to bet that actual registration rights are just perhipheral to this litigation anyway- I'm sure it would impress a judge/jury more if MS were able to trot out some unrestricted trademark registration from the mid-80's, but it doesn't seem strictly necessary to show likelihood of confusion.
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.
Windows is a trademark.
No, Microsoft Windows is a trademark.
You need to read some Internet RFCs if that bothers you; they're always talking about "octets" instead of "bytes". For a good reason, back when the ARPANet got started, "byte" did not always mean "8 bits". And check the Jargon file for "nybble, "chawmp", "gawble".
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.
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.
The best analogy is for an 0-10 football team being "happy" that they have first draft pick.