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Excel Registered as Trademark, 19 Years Late
unassimilatible writes "In a snafu even better than forgetting to renew the Hotmail.com domain, it seems that Microsoft was a little late in registering 'Excel' as a trademark - 19 years late, to be exact. While MS claims it is protected by the common law of trademark, it may have abandoned the right to enforce the mark, as Savvysoft has been using the mark openly and conspicuously with TurboExcel for some time. TurboExcel, of course, runs on Linux, and MS just sent Savvysoft a cease-and-desist letter to stop using the mark. Apparently, 'Word' and 'Office' are also not registered marks of MS, but being generic terms, MS might have a lot more trouble trying to claim them as marks, as happened in the Lindows kerfuffle."
Since when isn't excel a "generic term"?
It's worth noting that Hyundai made a car line called Excel back in 1985. I'm not sure which came first, the spreadsheet or the car.
I'm not a lawyer, but IIRC trademarks do not cover words, but instead cover the specific usage of words, logos, or even (in a few rare cases). So the fact that "Word," "Office," or "Excel" are real words really don't have a bearing on the case, as long as Microsoft can demonstrate to the court's satisfaction that those terms in relation to computer software are generally associated with Microsoft's products (which, in my opinion, would be a true assertion).
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Excel Software
Your comment has too few characters per line (currently 5.2).
Talking about ignorance... it is a matter of fact that you can have a perfectly valid trademark without ever registering it. It is sufficient to use the mark in your trade, and registering only helps in resolving disputes.
Microsoft isn't a trademark; it's the company. Windows, however, is a trademark of Microsoft.
...I remember that someone else had that trademark "Excel" back then and that's why it was always "Microsoft Excel" never just "Excel." It wasn't that MS was sloppy; someone already had it.
The important thing in trademark law is whether the word is in common usage in the domain of the product. Word is obviously common in the domain of word processors, since it is simply half of the name of the product type. The same is true of Office / office suites. A spreadsheet called Sheet would be similarly difficult to defend. Excel, however, is not a generic term, and so a spreadsheet called TurboExcel could be accused of attempting to pass off their product as being affiliated with Microsoft Excel.
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While some countries have a rule that ownership of a mark comes only by registration, in the U.S. at least, ownership comes only by use. (There are limited exceptions for registration prior to use.) Note that my discussion here only deals with Federal registration, each state has state trademark registration with their own rules which generally are similar.
A party that uses a unique word, device (an image or picture), phrase, sound or color exclusively to identify specific goods or services has the right to exclusively use that mark whether or not they register it. If the mark is truly distinctive they can sue others who use the same or deceptively similar marks even if they do not register the mark.
There are generally two classes of marks, strong marks and weak marks. Strong marks are words that are created and symbols that are so obviously tied to the issuer that even use in an unrelated field can be stopped, such as if someone other than the actual owner started to sell vacuum cleaners under the name Kodak, or sold computer disks under the name Exxon.
Weak marks are marks that generally only protect the product as used by its owner, and not for other goods. The term 'Acme' is a very weak mark, and if someone else was using the same mark unless it is on identical goods or services there are no grounds to go after someone else using even the identical mark. Which is why the people making shirts and the people making staples can both use the term 'Arrow' and neither is infringing on the other.
Most trademarks and servicemarks have varying degrees of being strong or weak depending on how well the mark has been policed, that is, the owner has made an effort to stop others from using the same mark either to refer to the product regardless of the manufacturer ("generic"). The terms 'aspirin', 'escalator', 'laundromat' and 'celophane' lost trademark status because of the manufacturer's failure to adequately police the mark against people using it as a generic term for the product in question. (Note that 'Aspirin' is still a trademark of Bayer in some other countries for salycilic acid.)
Ownership of a mark comes through use and one has the right to stop use of a deceptively similar mark on the same goods or services if the mark is not a weak mark. If the mark is extremely strong, as I indicated, it can even protect against use for other products and services as well. But ownership comes through use of a mark irregardless of registration.
Registration of a mark grants certain additional benefits such as presumption of validity and notice to others (since registered marks are published in the Trademark Register.) Once a mark has been registered continuously for five years it can acquire incontestible status.
The fact that MS has failed to register the mark 'Excel' for many years does not in any way weaken any rights they may have in the mark nor does it excuse anyone else's misuse of the mark. What does weaken their rights or excuse others use is the failure by Microsoft to police their mark and stop any known use of the same or deceptively similar marks to theirs.
The issue is also likelihood of confusion. Unless the general customer who would buy Excel might be confused into thinking TurboExcel was produced by the same company, it doesn't matter how much MS complains or doesn't like it, there is no misuse and Microsoft has no grounds to stop them. M$ would be better off doing what it did to Lindows and pay this company to change the name unless it knows the company can't afford or won't continue to defend the name, then it should probably engage in as much protracted legislation as possible.
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
Standard disclaimer: IANAL (yet):
There's a spectrum of protectability, from generic to descriptive to fanciful. So, you can't trademark the word "Soap" when applied to, well, soap. "Ivory soap," however, is more fanciful. And, you can use "Soap" when applied to something other than soap, like say photo cleaning software -- then it's more fanciful.
"Word" when applied to a word processor and "Office" when applied to an office suite are on the more generic/descriptive side of it. "Windows" had a hard time because it was generic -- "X-windows" and the idea of "Windowing operating environments" had already been around for a while.
"Excel," on the other hand, does not have any relation to spreadsheets, making it more fanciful. With respect to spreadsheets, "Excel" is not generic at all, but may become so -- "Aspirin" used to be a trademark of Bayer Corp (and still is in Europe, I believe), but they failed to protect it in the US and lost their right to it.
Should note that these words do not disappear from the english language just because somebody trademarks them -- people can still use words like "Office" and "Windows" to talk about, well, offices and windows. And, in fact, somebody could conceivably use those words to describe some other product. Look at "Delta" for example -- it's an airline, a faucet manufacturer and a power tool maker. SAS, similarly, is an airline and a software company. The touchstone is customer confusion -- if a customer would be confused by your use of a mark, that's a pretty good indication that you're infringing.
Don't see what the big deal is. Why is MS even bothering? Nobody's going to confuse "Turbo Excel" with "Microsoft Excel" - nobody that *uses* Office or Windows, anyway.
The big deal is that if they don't enforce their trademark, they could lose it. Just like how aspirin is now a generic term in the US but a trademark everywhere else. If that were to happen, anyone could start calling their spreadsheet software Excel.
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You are correct. Only copyright law acts the way your parent poster describes.
Look at all the retards commenting on trademark law.
Your mark is a trademark as long as you treat it as a trademark. You don't need to register it, but registering it enables you certain powers.
The only problems Microsoft has are
a) with the generic nature of the term Excel
b) that they had not sent cease and desist letters earlier
Unlike copyright, failure to enforce a trademark is the same as giving up a trademark.
Unlike patent law, prior existence of other examples does not itself render the mark invalid.
As the others said, yes you could. The exception is for extremely popular, strong brands, ones that are so big that using the trademark in other industries still could conceivably confuse customers. For example, you might get into trouble if you started sold Coca-Cola potato chips or Microsoft condoms (the prophylactic you can trust!).
[SIG] It's like putting a moose in the blender -- a recipe for disaster!