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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."
When did the term "X-Windows" come into play? It seems to me that therein lies the root of a good legal standing on the subject.
The Spoon
Updated 6/28/2011
i know microsoft won't be destroyed, but it will be nice to see them get embarassed. i'm an IP attorney, and let's just say that their appeal on this ruling was questionable. it's quite obvious, even to the law clerks in my firm, that you look at the level of genericness when the trademark was first used, not when it's being litigated. looked pretty rookie to me.
how do you know about it?
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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.
I've got no problem picking Lindows on this one.
The Lindows distribution is apparently intended to be an open-source workalike of Windows, convenient for former Windows users trying to switch to Linux. The mark they chose clearly says to me that it's NOT windows but it's LIKE it (and has something to do with Linux). "Brand 'L'" Try it and it MAY work well enough for you or it may not. No confusion whatsoever.
However this case will probably be decided on another basis: Whether Microsoft is attempting to privatize a generic mark. And IMHO "Windows" as applied to software windowing interface systems was already in use well before they coined "Microsoft Windows" and then dropped the "Microsoft". If the jury agrees with this, "Windows" becomes a generic once again and coinages like "Lindows" are fair game.
If you're trying to say you have a Linux based Windows system (bearing in mind that "Windows" is NOT a trademark) that is NOT Microsoft Windows but IS a member of the same category and a convenient alternative to the Microsoft product, what ELSE could you mark it to encapsulate that message?
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
It was stupid for Lindows to use that name in the first place...like forming your company and calling it "Microsopht" - you're gonna get blasted and you won't win.
Anyone who thinks they name their product Lindows to "ride on the success" of Windows is missing the point.
It wasn't stupid"for Lindows" to do this...it was slyly calculated. They knew exactly what they were doing: by naming their product "Lindows" they were going to force Microsoft to defend its trademark -- a case they thought they could win.
If they had followed your example ("Microsopht") then that indeed would have been stupid, because that's an easy case of infringement.
Their product naming strategy was simply bait to force a court to re-evaluate Microsoft's tenuous trademark. Microsoft knows this full well, which is why they wanted the case thrown out.
There is a huge pile of evidence to show that the term windows was very much generic at the time MS pick it, THAT IS WHY THEY PICKED IT. They didn't pick it because they were trying to create some new brand (ala Nike, Sony, eBay, etc.), but rather, they chose the word windows because that had become the term to define an entire category of window manager type programs.
With this latest ruling, which is now appeal proof, Lindows has the wooden stake to drive through MS' heart.
This will be a fun trial to watch. Robertson, Gates and Ballmer are all scheduled to testify.
And would have called them WINDOWS if there had been more than one of them, unless you can show they actually called more than one window WINDII.
I seem to recall seeing a quote somewhere that MS had intentionally named their products after generic terms to avoid being sued themselves. Hence, WORD instead of WORDPERFECT or WORDSTAR or WORDSTUFF, WINDOWS instead of OS/2, SOLARIS, etc.
The cats are out of the bag, its too late to close the gate now.
You are in a maze of twisted little posts, all alike.