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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."
They made a point of saying that Word and Office are generic terms, but so is excel! It's a perfectly normal word too, so why is it different when it comes to trademarking??
I start shipping my specially branded "Excel toilet paper" next week.
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.
The rest of your comment makes no sense at all. Are you a robot?
My pics.
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).
. . . if they ever registered 'Microsoft'.
excelairways
excelsports
blackexcel
Excel Canada
Excel Software
Your comment has too few characters per line (currently 5.2).
And tell me that's not a case of a egotistical marketing think-tank.m icrosoft.com%2Flibrary%2Ftoolbar%2F3.0%2Ftrademark s%2Fen-us.mspx&siteId=3&oId=2100-1012-5449348&ontI d=7343&lop=nl.ex
[Link from news.com.com article] http://dw.com.com/redir?destUrl=http%3A%2F%2Fwww.
Second on the list: Active Accessibility.
How does Active Accessibility become a trademark? It's two common english words that could be used to describe anything.
My stairs have Active Accessibility. My bicycle has Active Accessibility. My television has Active Accessibility.
I can understand the need for a business to have recognisable trademarks. You don't want people to be chatting and one person says,
`I use Dogs Bollocks 2002. It's the best.'
And the other person thinks he's talking about a separate competitors product with the same name.
What I don't understand though is this apparent need companies have to register plain english (or whatever their native tongue is) words without any sort of company recognition built into the trademark.
Would it not be better to have, `MS Active Accessibility' instead of plain `Active Accessibility' simply for the fact that it would possibly negate any confusion over whether I mean Microsoft's Active Accessibility or my stair's Active Accessibility?
And what about the poor bugger named Tex Murphy? Does he get into trouble any time his name comes up on the `Net along with something to do with games?
His name is Robert Paulsen...
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.
I recall reading somewhere a couple of years ago (here on slashdot, I think) that Microsoft had trademarked the lower case letter 'e' however.
O=='=++
...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.
Microsoft has been doing that for 19 years.
What about Access?
I used to sit at a help desk. One morning someone called and said they were having a problem with Microsoft Excess.
My answer? "Don't we all?"
PS - It did turn out to be an Excel question.
using the mark openly and conspicuously with TurboExcel for some time
Microsoft filed in May. SavvySoft introduced TurboExcel in June. So, yes, it has been "openly and conspicuously" using the Excel brand "for some time", like the story post claims.
But the gutless faggot who wrote the article summary neglected to mention that "some time" really means one month AFTER Microsoft filed trademark.
Honestly, the story summary is just pure heat. Would you trust anything the author of this post has to say? I sure wouldn't. It's 100% pure bullshit propaganda.
Before you mod me down, realize that I'm not saying that Microsoft should be awarded a trademark for Excel. (I think it's too general a term, plus they waited 19 years, blah blah blah.) What I am saying, however, is that the story poster sucks large, hairy donkey balls for being such a dick wad. That's a subtle difference, you see.
This all goes back to the modern golden rule. He who has the gold makes the rules and M$ has more gold than most countries. If they come after you for trademark/copyright infringement if you are right, they will still keep you tied up in court for years and bankrupt you if they can.
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.
Here's a question for anyone out there with any knowledge in this area: how close does a name need to be to a trademark to constitute infingement? Here in Colorado, the primary electrical utility company for much of the state is Xcel Energy. "Xcel" is not spelled the same, but does the fact that it sounds exactly alike and is only one letter off mean anything from the perspective of the law? Does it mean anything that it's a totally different industry (and hence little chance it would be confused with a Microsoft product)?
Karma: Frotzed (mostly due to the Frobozz Magic Karma Company)
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.
Condemnant quod non intellegunt.
I'm all for good conspiracy theories, but this one is a bit lofty....
First, they wouldn't just be bribing one judge... Large cases like this are generally tossed back and forth between a number of local and national courts if a settlement isn't reached before the appeals process begins. Thats a lot of judges, plus all the guys at the trademark office.
Second, established judges usually don't do all that much campaigning. The run for retention, not against other possible judges, and their reelection usually depends upon the opinions of the laywers who have tried cases before them. This is known as a bar retention percentage. Making poor decisions (whether because of money or not) would greatly deminish a judges chance at retention, and it would be very hard for any amount of money to make up for this.
Third, many many laywers, possibly even most of them, are very honorable. (examples... public defenders, many defense attornies, many prosecutors, the cabal of laywers at EFF and other public interest groups) What is not honorable is some of the arguments some laywers are forced to make as part of their job. Blame the problems on the perpetrators, not the laywers defending them.
The root of the problem is that if you throw enough money and laywers at a case, even if they are on the side that may be "evil" in the eyes of the public, they will be able to come up with some pretty convincing arguments. If the other side doesn't have enough laywers and money to refute these arguments there isn't much a judge can do. Plus, on the issue of Excel being a trademark, its pretty hard to argue against microsoft on this one. If you say "Excel" in relation to a computer to anyone in the world (who is at least a little familiar with computers) they will know exactly what you are talking about. TurboExcel, being a spreadsheet related utility, may in fact be infriging on this trademark... but we'll have to see how that case turns out.
One last thing... I do think the fact that the DoJ stopped pursuing microsoft right after Bush came into office is rather fishy... but thats the Prez and attorney general's call (John Ashcroft), not any judges.
Is this really true? From what I understand, that is the case with copyright, but not trademarks. Perhaps someone with some legal expertise can clarify, but from my understanding, a lack of a vigorous defense of a registered trademark is enough to lose it, much less not registering it in the first place.
I can say from first hand experience that trademark issues are so painful you will wish you were dead.
I just left a company that was launching a new product. Marketing had me investigate the availability of several domain names. I gave thema report of what was available. Weeks later, they told me they had registered a couple trademarks that corresponded with a domain and would I register the domain name. Well what do you know, the domain was now registered by someone else. (This became my fault.)
We sued the company for trademark infringement since we owned the trademark.
Long story short, we spend a year and thousands of dollars just to eventually drop the case and go with a different URL.
Trademarks are hell.
I only came here to do two things; kick some ass, and drink some beer...looks like we're almost out of beer.
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.
(This became my fault)
It was your fault. If the domain names were open, you should have registered them for one year even if you didn't need them. If the name was good enough to waste management's time with, you should have registered it. The meeting times along dwarf the cost of the domain names. You were being penny pincher, pound foolish.
Personally, I thought he meant to imply that the author was a dumb as a bundle of sticks.
Do daemons dream of electric sleep()?
> ... lack of a vigorous defense of a registered trademark is enough
:www.nissan.com/+Nissan+computers&hl=en). In that case Uzi Nissan did have the right to use the trademark Nissan as it was not used in anything that has to do with the automotive industry (Actually he was even able to reproduse evidence that he already used the name Nissan in an automobile spare parts business in the 70's, and did business with Nissan motors that prefered to identify itself as Datsun, and did nothing about his use of his last name in his automobile-related business back then). All this didn't help him to retain use of his domain. Apparently he was not rich enough. Perhaps he can still use it for email...
> to lose it, much less not registering it in the first place.
I wonder to what extent having my name registered in my passport and other official documents (birth certificate etc.) can be considered a defence for my using it for identification or network presence. Can I register my own name as a trademark for the purpose of network presence? E.G. for protecting my personal domain if and when some company decides to use it in their product? Or in case some company I don't know about already uses it? I would really like to know if anyone tried something of this sort, or if this makes legal sense at all. Do rich corporations have an advantage over individuals in using names?
The cited story (http://news.com.com/Microsoft+registers+trademark --19+years+late/2100-1012_3-5449348.html?tag=nefd. top) mentions the case of MikeRoweSoft.com, formerly owned by teenager Mike Rowe, who managed to negotiate a bit more than the $10 bucks reimbursement offered by MicroSoft for the domain. Now perhaps Mike Rowe's parents should have known better when registering the name Mike Rowe in their son's birth certificate in the early 90's or late 80's, as MicroSoft was already a well known name, and they perhaps should have taken into account the possibility that said son would perhaps one day decide to go into the software business (and what if Mike Rowe decided to sell facial tissue online? Would MicroSoft have a case then. Just kidding...)
Uzi Nissan's last name is a common Hebrew last name, derived from the name of the month in the Hebrew calendar, probably dating more than 3000 years. He registered the domain Nissan.com for use with his comuter related business around 1995, when the internet was still focused around computers, and long before Nissan motors showed any interest in network presence. Nissan Motors didn't manage to get the domain. But they did manage to deprive Uzi Nissan's use of the domain (http://64.233.183.104/search?q=cache:JH0zQdYEQ04J
Anyway, back to my original thought: can a name be registered as a trademark for the purpose of network presence? I use the name hadaso in many places for identification: in email accounts, in online forums, in my own domain. It is derived from my last name plus initial. I invested hundreds, perhaps thousands of hours of my life creating content thast is scattered around the web, mainly in open forums, discussion lists, talkbacks, Wikis etc., and almost all of them identify me using either my nickname (hadaso) or my full name. So I would like to protect my investment, and know that I will not be prevented in the future from freely using it. If posting on online forums was a business I could register the Trademark. Perhaps I can do it anyway (in what way? In which countries? Would it be of any use in real life? it didn't help Uzi Nissan that did register the Nissan trademark, though a bit late, like MS's registration of Excel®). To what extent is my "name already protected by something called common law trademark", a sort of protection that Excel® apparently enjoys according to the cited story?
The TurboExcel case mentioned seems clearcut to me: obviously it refers to MicroSoft's product, and no TradeMark protection is needed to see that. I'd bet that eve