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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
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?
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
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 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."
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.
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.
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.
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.
You're confusing "generic" with "descriptive." Generic terms make great trademarks (Scope, Crest, Tide, etc.). The problem is trademarks that are generic and descriptive of the product or service.
"Office" is certainly descriptive, and thus, you might notice that Microsoft is not wasting it's time going after "StarOffice" or "OpenOffice." The same is true for SQL Server.
"Word" is iffy, and a legal challenge would be interesting -- in many ways it is similar to "Windows."
The other product names you listed (Excel, Access, etc.) are good trademarks. You will never see a "Oracle Access" email program.
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".
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
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.
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.