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."

Comments

What it all means

[shystershep]

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.

Re:What it all means

[Anonymous Coward]

Apple used the term "Windows" on their Lisa in 1983. Xerox used it on the Xerox Star in 1981 and on the Xerox Altos in the late '70s. I believe it dates even earlier.

Re:What it all means

[ShadeARG]

Before X, there was W, which stands for Windows.

Re:What it all means

[mcc]

So I was looking through this old stack of technical books last week, and I came across a fascinating little book called "Methodology of Window Management" or some such. What it basically was was the minutes of a symposium in the UK collecting international academics to discuss the subject of window management systems for UNIX. They discussed existing systems, and how they might be improved upon in future systems. This predates X, and in fact the only UNIX system they even described in the book I had heard of was Andrew (although there was one chapter in which a young man named James Gosling gave a presentation on his project, something called SunDew which as far as I could tell was a predecessor to NeWS.

Anyone who read this book would find it immediately obvious that all of these people considered "window" an absolutely generic term, and MS-Windows featured on the periphery of their knowlege, if at all. In fact MS-Windows was only even mentioned twice in the book that I saw. One was in a sentence like "as compared to non-UNIX GUI systems, such as Macintosh or MS-Windows..".

The other was a particularly damning to MS's case little chapter called "10 years of window systems", which was a transcript of a talk given describing something like 8 different window systems developed in the previous 10 years and tracking their evolution, starting with the early smalltalk-based systems at PARC. MS-Windows was mentioned only in passing when a tiling-based window manager was used, prompting the presenter to say "this system is basically the exact same one used by MS Windows".

Reading this book it could not help but be excruciatingly obvious that everyone involved in this book considered "window" an absolutely generic term, "window system" the generic term for the thing they were describing, and that Microsoft had absolutely nothing to do with this. And this was not just some peripheral geeky thing like Linux to some extent is today. This was before the PC truly caught hold. The persons represented in this book were the people responsible for the heavy lifting in the computer industry at the time, both on the academic side of things and in terms of corporate representatives of the UNIX systems discussed.

This book was from 1986 but I'm certain finding something similar from 1984 would be effortless.

Re:Microsoft Hacked?

[shystershep]

Here (until /. fries my server): http://thewillards.us/owned-ms.html

Please be kind.

Re:Why was it called MICROSOFT Windows?

[dabraun]

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

Re:MS has a point...

[saddino]

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.

The predecessor to X-Windows

[stox]

was Stanford's W project. I'll give you all one guess what the W stood for.

Exhibit Number One

[Cy Guy]

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

Permission denied, not appeal

[Anonymous Coward]

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.