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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
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
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.
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 $4.7 million to politicians and their committees. Republicans received about 53 percent of that money.
This is their Definition of "windows" Computer Science. A rectangular area on the screen that displays its own file or message independently of the other areas of the screen.
A bunch of Tech Stuff
If you let generic names become trademarks because the name has acquired secondary meaning, that is almost the equivalent of saying that with enough money, you can buy words out of the language. No one would let me enforce the trademark HOUSE for my brand of prefabricated homes. Windows should be no different.
In other words, when M$ 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.
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.
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!
1) Once a term is determined to be generic within the category, it cannot be made ungeneric
2) The jury should consider the genericness of the term "windows" in the field of computers *prior* to Microsoft's usage.
Microsoft asked the judge for permission to appeal this ruling now instead of after the trial is over (an "interlocutory appeal"), and it went to the 9th Circuit. According to the press release, last week the 9th Circuit rejected Microsoft's appeal, apparently without even hearing oral arguments from either side. This response was actually quite fast - if they had allowed the appeal, the case could have dragged on for another two or three years.
At this point, the trial judge's ruling stands, and Microsoft's burden is now very high - they must show that "windows" was *not* a generic term prior to 1985 *and* that consumers are likely to be confused by the "Lindows" brand.
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?!
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.
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).
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.
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
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 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.