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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.
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).
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.
Microsoft has been doing that for 19 years.
Not forgetting Excel Saga...
Hail Ilpalazzo!
Actually, Microsoft is a registered trademark of Microsoft Corporation.
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.
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.
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 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.
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.