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

Ghosts of Pentium?

[Dark Paladin]

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.

Re:MS has a point...

[Compulawyer]

The problem is that argument assumes that M$ had the right to get a trademark in the first place. The question you pose is appropriate when asking whether someone is wilfully infringing on a valid trademark.

• Trademarks 101: You cannot trademark a generic name.
• Trademarks 102: A trademark that is "descriptive" can acquire a secondary meaning through pervasive use. (e.g., millions of $$ in advertising)
• Trademarks 103: Generic names cannot acquire secondary meaning because only trademarks can have secondary meanings and generic names cannot be trademarked.
• Trademarks 104: You cannot trademark a generic name.

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."

Not much of a point

[A nonymous Coward]

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?

Great!

[RelliK]

Now I wish they'd get smacked for "SQL Server", "Proxy Server", etc.

Why was it called MICROSOFT Windows?

[dpbsmith]

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.

Re:Who to root for?

[Thanatopsis]

"I have no problem with people using common words as their trademark names, as long as the trademarks are only defended within that industry."

Except that is the EXACT opposite of a trademark. Generic terms are ones that cannot be trademarked. The simple fact is that MS's trademark for Windows was denied three times before they managed to appeal it. Windows should have never been a trademark. No one really care about you legal opnion, clearly you have zero understanding of trademark law.

Re:What it all means

[nine-times]

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.

Lindows is trouncing them

[Anonymous Coward]

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.

Windows and Microsoft

[mark_space2001]

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.

This is big...

[Anita Coney]

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.