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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."
MS isn't my favorite company but I also detest it when people try to play off of someone else's popularity. A perplexing conundrum: I'm not sure who to root for this time.
X Windows
Correct me if I'm wrong, but Intel went through something like this when AMD and Cyrix had "486 compatible" on their labels, and Intel went to court. Judge ruled: 486 too generic, which moved Intel to start naming their processors to Pentium and the like and trade mark it so somebody couldn't claim "Pentium compatible!" without getting into trouble.
Microsoft might be facing this themselves now. Let's face it - before 1984, the computer term "windows" existed. Everybody with a GUI called their interface a "window" and a collection of them was a set of "windows". MS might very well lose the case.
Short run: they call future OS's by their names and actually release "MS Longhorn 2003", much like Apple has "OS 10.3 Panther". Lindows will be able to sell their product (in the US at least) under the Lindows name.
Long run: More lawsuits between MS at Lindows anyway. Like I'm so surprised.
52 Weeks, 52 Religions with John Hummel
If you let generic names become trademarks because the name has acquired secondary meaning, that is almost the equivalent of saying that with enough money, you can buy words out of the language. No one would let me enforce the trademark HOUSE for my brand of prefabricated homes. Windows should be no different.
In other words, when M$ says
"would the OS have been named Lindows if it wasn't for Windows?"
it is really saying:
"Don't look at the hole in the floor under the carpet. Just admire what a pretty carpet it is and believe you won't fall through if you walk across it."
Laws affecting technology will always be bad until enough techies become lawyers.
Would Microsoft have named their products Office, Word, Paint, .... Windows ... if those weren't generic terms and they weren't trying to grab the common term and associate it strictly with themselves?
Infuriate left and right
Now I wish they'd get smacked for "SQL Server", "Proxy Server", etc.
___
If you think big enough, you'll never have to do it.
Seems to me that speaks for itself. If, in 1985, Microsoft thought "Windows" wasn't generic, why did they think they had to qualify it by tacking their corporate name in front?
You don't hear other companies calling their products "the General Motors Cadillac" or "Schering-Plough Claritin" or the "Sanford Sharpie" or "Procter and Gamble Mr. Clean."
Anyone product manager would want their product name to be short and punchy. Nobody would tack the company name on unless the company's own legal department had opined that the name is generic, or close to generic, or in danger of becoming generic.
"How to Do Nothing," kids activities, back in print!
I just want to clarify what you said. According to what you quoted, the ruling didn't merely allow Lindows to argue that "windows" was a generic term prior to the release of MS Windows 1.0. The ruling is against a Microsoft argument that, even if "windows" had been a generic term prior to 1985, it has become an MS term.
The ruling says that what the jury will consider is only whether the term "windows" was generic in 1985, before Microsoft Windows 1.0, and if the jury finds that it was, then Lindows wins.
I think this is good news, because I believe Lindows has already produced evidence that Apple and Xerox had been using the term.
What's funny is that not only do they own the word Windows...they want to own the word lindows and I guess didnows and bindows and anything that ends in *indows. Next they will want everything that ends in ****s.
And by that shouldn't ms be suing companies for things like win-zip and win-ftp,. Isn't this just an attempt to capitalize on the Windows name? Don't they have to vigorously protect their trademark to keep it? How can they go after Lindows and not these others?
I tried for 5 years to come up with a clever sig...only to realize that I am not clever.
With the current jury instructions (use time period before MS' products to determine genericness) Microsoft *IS* going to lose their trademark if this goes to trial.
This will be a great show to watch.
I predict huge press. The ironic twist is that Microsoft brought this upon themselves! By suing Lindows, 'er Linspire - they brought into question their own trademark. Now that grenade is going to blow up in their face.
I hope they do not pay some money to settle since that's what they've been doing recently. Because it will be great to watch Gates try to deny all the windowing systems they ripped off when they greated their product.
Anyone also notice that Lindows doesn't care if they lose? This is playing out perfectly for them. They get a ton of press regardless and if they win they'll be in the history books. Or Microsoft will be for being so dumb to get their OWN trademark invalidated.
It's nice to see the little guy win one.
Lindows - DON'T SETTLE! We're counting on you.
Surely windows is/was a generic term. I think X-windows should be prior art enough as the name of a software package that did much the same as MS's product. And the term "windows" was in use generically in the computer community before that.
I think though that "Lindows" is just a bit too close to the common practice of refering to MS Windows as just "Windows". They should name their product Linspire Windows or something similar. Which they may be already planning to do.
Well obviously it was generic before 1985! what else could it mean? nowdays its totally microsoft - eg. "im in windows, i use windows, do you have windows? does it have windows? can you use windows? my windows wont work! my windows is broken" almost always mean microsoft windows. But if you go back to 1985 and say that they shouldnt have been granted trademark in the first place then that changes the field (although windows-xp might count)
Tip: avoid naming your product after things that often break.
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Under different circumstances, this could have worked really well for Microsoft. Specifically, had "windows" not been a generic computer interface term in 1985, this ruling would have been disasterous for Lindows (and all non-Microsoft GUI makers who use the term "window"). This ruling basically stated that the jury could not have considered any trademark damage caused by the "genericizing" of the term since MS Windows was first released. This ruling was as pro-Microsoft as logically possible within the framework of Trademark law. (yeah, I know, law and logic just don't mix).
Microsoft will either be forced to pay Lindows a LOT of money to settle this or to lose their trademark at trial. My prediction: Microsoft will not settle and is willing to lose at trial.
Let's face it, even if they settle with Lindows, every one else will know that the Windows trademark is toast. So by settling Microsoft would only be setting itself up for more lawsuits and more payouts.
In fact, I predict that Microsoft will attempt use their loss of the Windows trademark to their advantage. They'll give Longhorn an entirely new name because they'll claim it's an entirely new OS.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Using "ux" in trying to make someone think about the relationship of Unix to Linux
I see nothing wrong with either... I also see no complaints when someone writes an application with "win" in the name, or "98" ir "2000" or "xp".. etc..
regards
dbcad7
waiting for ad.doubleclick.net
You have put the cart before the horse.
If 'windows' is NOT trademarkable due to being in common usage before being hijacked by Microsoft, then ANYONE can use ANY PART of the name and it does not matter that Microsoft was using it first - they have no claim on it just by using it first.
Yes, Lindows seems to have made a blatant ripoff of their competitors name for OS software, BUT IT COULD NOT HAVE BEEN TRADEMARKED in the first place as it was a generic term in the industry BEFORE MS hijacked it for their product.
Lindows IS riding on Windows' success - but it is legally (if not morally) allowed as Microsoft had/has no prior claim legally (and possibly morally) to the word.
"as close as possible to a blatant trademark infringment."
If the court rules the term generic, there is no trademark, so no trademark infringment - now or ever.
"identifiable simply because of the trademark of their competitor."
Again, if the term was in general usage in the industry prior to Microsoft stealing it for themselves, the court will have to rule there is no trademark - which means ANYONE can use the word Windows (or any non-trademarked variation) in their name.
"You keep using that word. I don't think it means what you think it means." PB quote, horribly mangled to suit the occasion by me.
Acts of massive stupidity are almost never covered by warranty. --me.