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A Setback For Microsoft In Lindows Trademark Case

Posted by timothy on from the context-context dept.

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."

16 of 414 comments (clear)

  1. Sigh by m00nun1t · · Score: 5, Insightful

    ...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

    Why must the /. "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!

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    1. Re:Sigh by Pecisk · · Score: 4, Insightful

      See, Red Hat is not so something generic as Windows. It is simply as that. And it's annoying as Microsoft actually IS a monopoly. So people are getting anoyed that they are claim that their trademark (aka "Windows" is become something that belongs to Microsoft. I'm really surprised how they got a trademark in first place. I will trademark Mars, for example, now, wait...it isn't already taken? :)

      --
      user@ubuntubox:~$ stfu This server is going down for shutdown NOW!
    2. Re:Sigh by John+Seminal · · Score: 4, Insightful
      What is in a name? A rose by any other name is still a rose.

      I think these cases boil down to confusing people about what they are buying. If you want windows, or red hat, you should be able to go to your computer store, walk to the isle with those products, and not be confused such as looking at three nearly identical boxes with different software. I doubt anyone would be confused if they went to a store and saw Windows next to Lindows.

      Same thing with Red Hat. So what if I start a company called Blue Hat? Big deal. As long as I do not try and steal the other company's identity. Anyways, there is something called competition which I think is good. As long as there is no trickery to decieve customers.

      --

      Rosco: "If brains were gunpowder, Enos couldn't blow his nose."

    3. Re:Sigh by mpe · · Score: 5, Insightful

      Why must the /. "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?

      Microsoft have a weak trademark in the first place. One which is descriptive of their software. Red Hat has a more meritable trademark since coloured headgear has no obvious connection with their product.

      Of course Microsoft (or any other company) is going to fight something like this.

      Maybe Microsoft should have come up with a better trademark in the first place.

    4. Re:Sigh by clontzman · · Score: 5, Insightful

      Yeah, I know, how can an organisation trademark a word that's a common noun?

      People do it every day...

      Apple
      Tide
      All
      Bounty
      Quake
      All
      Surf
      Maci ntosh
      Word
      Excel
      Illustrator

      It's completely reasonable to trademark common words for narrow uses and it's completely reasonable to expect that those trademarks would be protected.

      Here's a little exercise: name your next Linux distro Lacintosh and count the milliseconds until Apple serves you with a cease and desist order... and they'd be right to do so.

    5. Re:Sigh by jkabbe · · Score: 4, Insightful

      Trademarks like Apple and Macintosh make more sense because prior to their introduction as a company/product no one would have associated them with a computer (or its function).

      But since Word is a common noun Microsoft can't sue someone who comes out with another product like (just pretend the order of release was different) WordPerfect claiming they are violating the trademark on Word for computer software. The term "word" is common and Microsoft can't trademark everything that includes or is derived from that term.

      And that's why Microsoft is going to lose - "window" was a common term before the release of Microsoft Windows. Lindows couldn't come out with a product called Windows because that name is trademarked. However, there is nothing to prevent them from coming out with another product based around the common nouns "window" or "windows"

    6. Re:Sigh by clontzman · · Score: 4, Insightful

      Not what I was responding to -- I was just making the point that common nouns are trademarked all the time.

      But c'mon... first off, "Lindows" and "Windows" are hominyms. Say them out loud -- they sound virtually identical. You can't come out with the Ahppell Nackintoush and say that becuase it doesn't look like a trademark that it doesn't infringe on one.

      When Lindows was launched originally, its whole marketing campaign was that it would run Windows programs -- hence, "Windows crossed with Linux." They've since backed off that claim, but they were clearly trying to build their market off of the similarity to the Windows name which is prohibited by trademark law.

      The real question is, is Lindows a good product? If it is, they'd be better served by having a name that they could make for themselves, rather than focusing all of their attention on being "similar to, but not quite the same as, Windows."

  2. Microsoft has no case... by supersam · · Score: 4, Insightful

    'Windows' could be a trademark... 'windows' cannot!!

  3. Meanwhile by 91degrees · · Score: 5, Insightful

    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.

  4. It is very simple IMHO. by jotaeleemeese · · Score: 4, Insightful

    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.
  5. Re:In other countries... by 91degrees · · Score: 4, Insightful

    That depends. What do they call windows (i.e. the actual boxes with titlebars) in other countries? Do they translate the word "window" into their own language, or simply use the English word?

  6. generic by Corporal+Tunnel · · Score: 5, Insightful
    a term that is generic cannot be made ungeneric.

    Sure it can. Apple, Gateway, Dell, etc...

  7. Genericness by angusr · · Score: 5, Insightful
    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

    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?

  8. Home turf? by Call+Me+Black+Cloud · · Score: 5, Insightful

    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.

  9. Re:Haven't Changed My Mind by NSash · · Score: 5, Insightful
    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.


    I think you're confused about how trademark infringement works. A trademark is infringed if and only if it can be shown that the name would cause a consumer to confuse the two products. Just having a name that's reminiscent of the name of another company's product isn't automatically an infringement. (That's why if there's a car called a Mercury, and I want to call my software suite Mercury, I can do so: there's no risk that someone will mistakenly believe that my software suite is a product of the car company.) There is no way someone would confuse "Lindows" for "Microsoft Windows."

  10. Common sense by darnok · · Score: 5, Insightful

    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.