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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
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
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
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.
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
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.
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.