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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?
Sure it can. Apple, Gateway, Dell, etc...
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.
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.
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.
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.
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".
Take the free Xbox and run!
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