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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
http://www.microsoft.com/mspress/uk/default.htm
:) ?
Says "Owned by OutLaw Group"....
Anyone want to get a mirror up before microsoft fixes it
for the judge to make this ruling? Wasn't this the crux of Lindows defense something like 6-8 months ago? (time passes funny for me lately, so it just seems like years have passed already...)
The cesspool just got a check and balance.
This mainly says who has jurisdiction in the case, with the judge not ruling on the actual issue of whether "Windows" is generic or not. That will be left up to another court.
I don't know how well linspire can handle this, so Here's a mirror.
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.
Why is this even an issue anymore? Isn't Lindows further killing itself in other non-lawsuit-involved ways by now using the atrocious name "Linspire"? How can Microsoft still claim damages?
Don't blame Durga. I voted for Centauri.
X Windows
Do I need to say more?
Hasn't Lindows already changed their name to Altria or Claritin or something like that? Or was that Gator?
What I'm listening to now on Pandora...
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
I agree. The Lindows guys surely chose this name to ride on MS' coattails (or borg tendrils if you prefer). The "Elmer Fudd" principle should not be forgotten: if the disputed name is pronounced the same way as the plaintiff's name if you are Elmer Fudd, you really blew it.
Don't blame Durga. I voted for Centauri.
So what systems used the term "windows" in a generic sense refering to a computer graphical user interface prior to 1985?
The first release of X was in 1984. Macintosh was also released in 1984. It shouldn't be too hard to document that the term "windows" was used generically in those systems prior to 1985.
Other examples?
"office for windows"? WTF, windows don't have offices, it's the other way around. Buildings have offices, and offices have windows.
We had a mac in 1984, and we definitely called the windows windows. Nothing about the Microsoft version is their property, except for the code they stole^H^H^H^H^Hbought from other people.
stuff |
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 $4.7 million to politicians and their committees. Republicans received about 53 percent of that money.
This is their Definition of "windows" Computer Science. A rectangular area on the screen that displays its own file or message independently of the other areas of the screen.
A bunch of Tech Stuff
http://force-elite.com/ms-hacked/default.htm
"must must make"? Is that like double-plus make? Is this an excerpt from a Dr. Suess book?
If you let generic names become trademarks because the name has acquired secondary meaning, that is almost the equivalent of saying that with enough money, you can buy words out of the language. No one would let me enforce the trademark HOUSE for my brand of prefabricated homes. Windows should be no different.
In other words, when M$ 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
No, and that's why Lindows is using this strategy. It knows it's toast if the Windows trademark is valid, so it's attacking that validity. If Windows is generic, it doesn't matter how pathetic someone might have been in copying that name, because it has no protection.
The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
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.
The question though isn't about trademarks - it is whether pre 1985 the term "Windows" was able to be linked to Microsoft in most people's minds. There were (are) prior systems in place which make this highly improbale - such as X windows. I was trying to get accross too much information in too few words ;)
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'm sure Xerox PARC pre-dates all of this by a couple of years.
Life is like a box of chocolates, you never know when your gonna get food poisoning.
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.
how do you know about it?
Contribute to civilization: ari.aynrand.org/donate
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.
Longhorn 2003?!
I'm inclined to agree, and though I don't know enough personally about the case, but from what I can tell so far:
- Windows was definitly not a generic term in 1985. Heck. DOS was closer to being a generic name than Windows. Back then, Windows wasn't even popular enough to be known to most end-users. Despite Lindows' claim that "strong evidence establishing the generic use of the terms "windows" and "windowing" during the time Microsoft first began using them in 1983 and 1984" I was quite heavily into all 3 major OS's at the time (DOS, Mac, Commodore/Amiga) and Windows absolutely was not used nearly enough to be a generic term. Societally, it was just some vague concept of an idiot-friendly OS, and those it would affect most were not real keen on the transition from DOS.
- Lindows' OS looks an awful lot like Windows
- Lindows, phonetically, sounds a lot like Windows.
- Their claim that "Microsoft, from 1990 to 1994, continued to use the term "windowing environments' to poll consumers..." also holds very little water, as I answered these polls. They said WINDOWS environment. Not Windowing. Additionally, I don't see how referring to their particular brand of platform makes it a generic term. If you were a restaurant owner for McDonald's, and you asked your customers how well they enjoyed the overall McDonald's environment, or McDonald's experience, this would not make it a generic term. It simply means you are clarifying your brand for an otherwise stupid customer.
However, there's also the following to consider:If you poke the bear (read: Microsoft) then expect it to suddenly get very interested in poking you back. Linux had their own thing going, and MS, while not happy about not being the only O/S, has not, to my knowledge, made a Lynux-type product. (correct me if I'm wrong). Lindows should have expected this reaction for piggybacking off MS's success.
-The Libra
"You've got no kids, no wife, no job, and you're not in The Tigger Movie!!!"
- my best friend's son, Gabe, at 5 years old.
-The Libra
"Please be patient--The future will begin momentarily."
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.
More likely, SCO (the current corporation, not to be confused with the one what actually developed SCO unix and later went bankrupt and was bought up by Caldera) will resurrect Seattle Computer Products, buy it out completely, then claim Microsoft never really had rights to QDOS and sue for money owed for 25 years of unlicensed use...
"Convictions are more dangerous enemies of truth than lies."
This reminds me of good old Mike Rowe.
"Windows" was also a computer term describing the interfaces containing a program within a GUI interface.
Because of this, trademark could be lost. It would be like somebody in 1940's calling their product "The Ford Car", and forbidding anyone else from calling their product a "car".
52 Weeks, 52 Religions with John Hummel
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
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.
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.
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.
This comment does not represent the views or opinions of the user.
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).
Sorry, gotta call bullshit on this one. "Windows" was quite definately a generic term to the average computer user in 1985. Those same idiots these operating systems were friendly to would refer to everything as a "window". Trying to get one to tell you whether what was on their screen was a "dialog" or not was next to impossible -- if it was on their screen and it was rectangular, it was a "window"...
"Convictions are more dangerous enemies of truth than lies."
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.
Trademarks are restricted by markets. The question is whether or not "windows" was a generic term related to computing devices before the release of Windows 1.0 in 1985.
At the end of the day the court will rule that Microsoft has exclusive rights to the use of the "Windows" trademark provided Microsoft provides each Lindows user with a $5 discount coupon good on his next purchase of an MS product.
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. "
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
As did Microsoft. MS stole a word from the commons and benefitted from this. You benefit in the beginning as your product is selfdescriptive, later on you pay a price since you can't protect it.
Take your oick and live with it. MS did but refuses to live with their decision. They deserves to lose and they will lose. If Lindows for some obscure reasons looses they will win an appeal and the case will be remanded. Windows as a MS trademark is Doomed (tm?)
Big welcome to Linux Windows, etc.
Help fight continental drift.
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 has arguably deliberate policy of giving their products generic names: Windows, Office, Word, SQL Server, Access, Works and then threaten companies which do not even directly compete with them (wxWindows were renamed to wxWidgets even though wxWindows were miles away from OS market.) thus denying competition possibility even clearly identify their products without running into trademark infringement.
It's not just trademarks, either. They also coopt inconvenient technical terms and redefine them to their advantage.
For example: "Wizard". It meant an person exceptionally good at some aspect of IT, (especially system administration). Someone with perhaps less than the mind-bogglingly total understanding of a subject that would make one a "guru". But nevertheless an expert who one would call for fast and correct solutions to difficult problems.
Typically it would be prefixed with a modifier designating the field of expertese, as in "Unix wizard" or "Sendmail wizard". If you had a problem with installing and/or a bug in configuring Sendmail, for instance, you'd look around for a "Sendmail Wizard" to help you out.
Wizards were well respected. Referring to someone as a wizard at some aspect of Microsoft system/application set administration implied that he had more on the ball than Microsoft's manual writers and helpdesk personnel (even after escalation), perhaps than their developers (since he typically solved difficult problems THEY had created without access to the source).
Then Microsoft coopted it for their (sometimes brain-dead) automated install/configuration menu sets. This became the meaning first encountered by Windows lusers (a somewhat large population). Now referring to a person as a Wizard became confusing - and once sorted out nevertheless carried the implication that he might be an idiot-savant, no more brainful than a lame stack of menus.
I see both of these trends as subsets of Microsoft's "Embrace / Extend (incompatibly) / Extinguish" strategy, polluting the namespace in an effort to trip up all competition and monopolize the IT market.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
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.
You have good points. MS deserves to lose on controlling the Windows word, but I wish it was not from "Lindows", which basically has tried to immitate/copy MS Windows and cash in with a sound-alike name.
Don't blame Durga. I voted for Centauri.
My grandmother has called those clear things on the walls that let you look outside windows for years, and many generations before her have..
now because of some fairly recent upstart compared to the time the term has been used, now has exclusive rights to call that their name and property?
It's like McDonalds Suing the McDonald Clan for use of "their" name. (which I think actually happened)