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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
>> 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.
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.
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.
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