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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."
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.
'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.
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
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.
Well, they're both operating systems that will usually sit side by side on a shelf. If I created a soda and called it Moca-Mola and had it next to Coca-Cola on the shelves, I would expect flocks of lawyers to come after me. And Lindows can't possibly claim they didn't name their product to rhyme with Windows accidentally.
slashdot, news for crazed liberal socialist zealots
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.
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.
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.
It has nothing to do with tradmarks. It's got to do with patnts.
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.
In my last job, there were comments frequently made by the engineers, such as "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. I have for example not seen anything called "portcullis", it would perhaps be fun to write such an application.
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.
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.
But it's used to describe a windowing product. It's kind of like Ford taking out a trademark on "Car".
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]
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.
...I think "another Windows critical vulnerability" will become a generic term as well.
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.
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
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".
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.
Why should LindowsOS change their name?
Pay close attention to this: they are WINNING this suit that MS initiated.
And if they prevail in the suit, then MS will lose its Windows trademark. They'll of course appeal, but how can a company that successfully claims "Internet Explorer" is a generic term when they are sued, possibly prevail when they used a term that was clearly generic when they took it?
Bottom line is that LindowsOS stands to gain alot more "free advertising" by keeping their name and pressing on with the case, especially if they can be billed as "David".
One last thing, the Judge just significantly increased the amount MS will have to offer to settle this case.
Take the free Xbox and run!
your friend,
Mike Rowe
"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.
Windows = generic term
.... (I think the Amiga ran something-DOS too)
Microsoft Windows = trademark
Theoretically, as Microsoft could not trademark the word "Windows", requiring them to use the company name to identify "their implementation of a concept", this should mean is that:
IBM could release/trademark "IBM Windows",
Sun could release/trademark "Sun Windows"
Lindows can release "Lindows" but probably can't trademark it due to its very minor distinction from a generic term - this doesn't mean they can't use it, they just can't register it as a trademark.
Interestingly lindows.com refers to the operating system as "LindowsOS" - not "Lindows"
The obvious analogy is DOS... as in
DR-DOS vs MS-DOS vs IBM-DOS vs
All are named by their generic terms, prefixed by their respective manufacturer (Digital Research, Microsoft, International Business Machines)
Given that Microsoft did not object to the use of the name "Disk Operating System" in these cases, what makes them think they should start with the name "Windows"?
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.
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.