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Ruling Clears Way For Lindows Trial
shystershep writes "Various sources are reporting that Microsoft's appeal in the Lindows trademark infringement suit was rejected by the Ninth Circuit Court of Appeals. At issue was the trial judge's decision [PDF link] to 'instruct a jury to consider only whether 'windows' was a generic term before November 1985, when the first version of Microsoft's Windows was released.' This is significant because a generic mark receives no trademark protection, and the ruling that the jury must make that determination based only on the use of the term before 1985 is a major blow to Microsoft."
From the trial judge's ruling:
the Court declares it will instruct the jury to consider whether the Windows mark was generic during the period before Microsoft Windows 1.0 entered the marketplace in November 1985. Furthermore, the Court will not instruct the jury that even if Windows were generic prior to November 1985, the trademark would nonetheless be valid today so long as the primary significance of the term today is not generic.
This doesn't mean that the judge has ruled that "windows" is generic, but it does mean that Lindows can (try to)point out to the jury that "windows" was used generically before Microsoft started using it. If it is generic, Microsoft loses their trademark protection in that name (althought "Microsoft Windows" would probably still be valid). Now it's all about the status of that term in the computer industry, including the commercial side of it, prior to 1985.
The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
This mainly says who has jurisdiction in the case, with the judge not ruling on the actual issue of whether "Windows" is generic or not. That will be left up to another court.
I don't know how well linspire can handle this, so Here's a mirror.
Even if they don't compete with Microsoft Windows and run on Microsoft Windows.
that said, i'm rubbing my hands waiting for the downfall of micro$oft to happen at trial...
It's not called "X Windows", it's the X Window system. "X Windows" is just slang for what people call the X Window system.
Here (until /. fries my server): http://thewillards.us/owned-ms.html
Please be kind.
The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
We had a mac in 1984, and we definitely called the windows windows. Nothing about the Microsoft version is their property, except for the code they stole^H^H^H^H^Hbought from other people.
stuff |
As we can see the poster has the both the intellect and sexual fantasies of a gerbili id=intel home+homerollshop&url=http://goat.cx
http://apps.intel.com/util/serve-url.asp?
Actually, the money was split down the middle, democrats revceived almost half of it:
Overall, Microsoft and its employees were the country's fifth-largest political donor in the 2000 election -- contributing $4.7 million to politicians and their committees. Republicans received about 53 percent of that money. Overall, Microsoft and its employees were the country's fifth-largest political donor in the 2000 election -- contributing $4.7 million to politicians and their committees. Republicans received about 53 percent of that money.
This is their Definition of "windows" Computer Science. A rectangular area on the screen that displays its own file or message independently of the other areas of the screen.
A bunch of Tech Stuff
http://force-elite.com/ms-hacked/default.htm
You know what's funny? That google has already spidered that page (5/23/04).
google.com link here
you can say "pentium compatable" Trademark doesn't mean that they cannot claim compatability, just that they cannot make it look confusingly similar to the trademark
Snowden and Manning are heroes.
1) Once a term is determined to be generic within the category, it cannot be made ungeneric
2) The jury should consider the genericness of the term "windows" in the field of computers *prior* to Microsoft's usage.
Microsoft asked the judge for permission to appeal this ruling now instead of after the trial is over (an "interlocutory appeal"), and it went to the 9th Circuit. According to the press release, last week the 9th Circuit rejected Microsoft's appeal, apparently without even hearing oral arguments from either side. This response was actually quite fast - if they had allowed the appeal, the case could have dragged on for another two or three years.
At this point, the trial judge's ruling stands, and Microsoft's burden is now very high - they must show that "windows" was *not* a generic term prior to 1985 *and* that consumers are likely to be confused by the "Lindows" brand.
Exactly. Intel wasn't upset about compatibility claims (or if they were, they couldn't do anything about it, just as Hayes couldn't do anything about every other modem in existence calling itself "Hayes compatible") -- they got upset whem AMD began selling the "AMD 486", "AMD 486-DX2", etc...
"Convictions are more dangerous enemies of truth than lies."
Bull.
You do hear about the 'Dodge Caravan', the 'Gilette Sensor', the 'Nikon CoolPix' - in fact the company name is often prepended when it would not otherwise be all that clear what the product was. What's a 'Sensor' if it's not from Gilette? Would a 'CoolPix' sound like anything more than a disposable camera if it wasn't called the 'Nikon CoolPix'?
There are plenty of examples of company names being used or not used. In 1985 calling a product just plain 'Windows' might leave you thinking that it was a something used when building houses.
David
I'm inclined to agree, and though I don't know enough personally about the case, but from what I can tell so far:
- Windows was definitly not a generic term in 1985. Heck. DOS was closer to being a generic name than Windows. Back then, Windows wasn't even popular enough to be known to most end-users. Despite Lindows' claim that "strong evidence establishing the generic use of the terms "windows" and "windowing" during the time Microsoft first began using them in 1983 and 1984" I was quite heavily into all 3 major OS's at the time (DOS, Mac, Commodore/Amiga) and Windows absolutely was not used nearly enough to be a generic term. Societally, it was just some vague concept of an idiot-friendly OS, and those it would affect most were not real keen on the transition from DOS.
- Lindows' OS looks an awful lot like Windows
- Lindows, phonetically, sounds a lot like Windows.
- Their claim that "Microsoft, from 1990 to 1994, continued to use the term "windowing environments' to poll consumers..." also holds very little water, as I answered these polls. They said WINDOWS environment. Not Windowing. Additionally, I don't see how referring to their particular brand of platform makes it a generic term. If you were a restaurant owner for McDonald's, and you asked your customers how well they enjoyed the overall McDonald's environment, or McDonald's experience, this would not make it a generic term. It simply means you are clarifying your brand for an otherwise stupid customer.
However, there's also the following to consider:If you poke the bear (read: Microsoft) then expect it to suddenly get very interested in poking you back. Linux had their own thing going, and MS, while not happy about not being the only O/S, has not, to my knowledge, made a Lynux-type product. (correct me if I'm wrong). Lindows should have expected this reaction for piggybacking off MS's success.
-The Libra
"You've got no kids, no wife, no job, and you're not in The Tigger Movie!!!"
- my best friend's son, Gabe, at 5 years old.
-The Libra
"Please be patient--The future will begin momentarily."
Trademarks 101: You cannot trademark a generic name.
I think you mean, "You cannot trademark a descriptive name."
For instance, "Crest" is a generic name, and has a long history of use before Proctor and Gamble received a trademark for its toothpaste product.
If they has instead tried to apply for a trademark for a metal shield product, they almost certainly would have failed to receive protection because "Crest" is a descriptive term for a shield.
Generic terms are fine for trademarks (see Scope, Tide, etc.) as long as they are not descriptive.
In this case, "Windows" may indeed be a descriptive term due to its use in the UI domain prior to 1985 -- and that's what the courts will have to decide.
You are correct, however, that the parent to your post is missing the point.
Microsoft initially trademarked the combination "Microsoft Windows" - it wasn't until the 1990s that they succeeded in trademarking the individual term "Windows". By that time, they'd already dominated the market and either bought out or threatened anyone significant using the term "windows" in their product name based on alleged confusion with the combination trademark.
Commodore was showing the Amiga 1000 at that time with its Workbench desktop featuring windows.
GEM was out, I believe
Xerox certainly had the Alto available long before '84/'85
I'm not sure if the ST was available, but I know it was being talked about in '84 (see GEM above)
Sorry, gotta call bullshit on this one. "Windows" was quite definately a generic term to the average computer user in 1985. Those same idiots these operating systems were friendly to would refer to everything as a "window". Trying to get one to tell you whether what was on their screen was a "dialog" or not was next to impossible -- if it was on their screen and it was rectangular, it was a "window"...
"Convictions are more dangerous enemies of truth than lies."
Trademarks are restricted by markets. The question is whether or not "windows" was a generic term related to computing devices before the release of Windows 1.0 in 1985.
was Stanford's W project. I'll give you all one guess what the W stood for.
"To those who are overly cautious, everything is impossible. "
Courtesy the GOOGLE USENET archive which gives 120 hits (103 unique) searching on "user interface" and "windows" prior to November 1985.
There is one I found curious though. If you change the search to "user interface" and "Microsoft windows" you get a single hit from Nov 16, 1983 about a spreadsheet program. Had MS been using that name for a precurser to Excel on Macintosh?
And personally, If I were going to to subpeona any documents, I would wan't to see the presentation slides used for this conference where "Leo Nicora [sic *], Product Marketing Mgr, Microsoft Windows" was to give a talk on "window architectures". If a MS employee was documented using the term generically in march of 1984 it would pretty much be a slam dunk for Lindows.
Another strong piece of evidence is a few references to "Sun Windows" which may have been a development environment, or maybe it was just references to their window management implementation and isn't meant to be a brand.
* Nikora
Work for Change & GET PAID!
Microsoft asked for permission to appeal in the middle of the case, before a trial even took place. The court of appeals refused to hear the appeal at this time. In essence, the appeals court put it off until later.
What this means is that there can be a trial, that the trial will consider only pre-1985 evidence on genericness, and that Microsoft can appeal the result afterwards. This case is far from over.
Well Apple officially goes by 'apple computer', "Apple" alone is what people call it generally when its known whats is being spoken about.
Its also clear that "microsoft windows" is a trademark. "Windows" which is a plain word with no specific identifier isnt. "Chair' is not, "Aeron Chair' is. This should be obvious to anyone not a MS lawyer.