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How Microsoft Takes a Name
An anonymous reader writes "According to a report in the "Seattle Post-Intelligencer," the Windows Defender name was already being used by an Australian developer, Adam Lyttle. His Windows Defender product protected Windows users from malicious Web sites. Adam Lyttle told the Post-Intelligencer's Todd Bishop that Microsoft contacted him a month ago, charging him with infringing on the Windows trademark but neglecting to mention that the software giant wanted to use the "Windows Defender" name. Lyttle subsequently signed over rights to the name to Microsoft and was "shocked" when he later learned the company intended to use the name for one of its own products. "
He signed away his rights to the name. What did he expect?
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
A trademark is a trademark. If you're violating it, you don't get to ask the owner what they're going to use it for...
I wonder if anyone had a Coke One® website before Coke make Coke One...
www.christopherlewis.com
Microsoft has only done this about 5,000 times before, why would it be any different this time?
MS bought the name off him... and then used it. Shockaroonie!
They really should have mentioned they wanted the name for a product, so the guy could have hung on to it a bit longer and perhaps got more for it. Perhaps not the most sensible course of action from MS's perspective. Perfectly understandable that they would use copyright infringement as the crowbar to get the name off the guy, but still, pretty disingenuous.
While I think that it stinks a bit, he WAS using Windows as part of his product name, which has been ruled several times to be Microsoft's trademark...So I don't think it's out of line with any other legal decisions in Microsoft's favor.
He signed over the name for no money (mistake), Microsoft used it for a product, he says he wouldn't have wanted money anyway - this seems like a big nothing to me.
If that tactic failed, they would have moved on to to the next phase - use influence on "3rd party" company to have said company buy him out.
Really, this could be the mafia talking - "nothing personal, it's just business", etc. You threaten, you cheat, you BS and just in case there is any comeback you libel the guy by claiming that had you not done any of those things, he would have blackmailed you. Oh, and everyone else behaves like this, you claim, so that's OK too. Another day, another guy pushed through the wood-chipper.
And people wonder why Microsoft isn't trusted and is fast ending up with negative brand value.
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tournoun pas maï
MS is not entitled to tell this guy why they sued for the TM infringement. And this guy really shouldn't be surprised...did he think they would tell him to stop using their name if it wasn't something that they planned to do with it (or his product was costing them money)?
He should just rename it to something more, hm, original and be done with it.
I mod down so you can mod up. Your welcome.
This is Microsoft shooting its self in the foot again as it just highlights how much their operating systems are missing
Karmady is the best medicine.
You don't sign a contract until a lawyer has looked at it. Of course MS will give themselves the upper hand.. Silly Wabbit.
"He expected that Microsoft was acting in good faith..."
ROFL
How pathetic are you that you follow me from topic to topic and waste all your mod points at once modding me down?
If you are gullible, don't do your homework, and don't hire an attorney when dealing with Microsoft, they'll screw you.
In other news, if you cover yourself in ground beef and swim with sharks, you may get bitten.
How pathetic are you that you follow me from topic to topic and waste all your mod points at once modding me down?
Give us a break, a naive 22yo being shocked over a minor commercial decision isnt news.
" ... I don't know - I'm not a lawyer. ... are words from the dictionary trademarkable? ..."
And even if you were, you'd need one.
Dictionary words can describe products. Some dictionary words are associated with well known products. And here's the part where even if you were a lawyer, you would want to hire another one:
You can trademark or trade-name dictionary words. That seems obvious.
What can you do with that? Here's where your lawyer will probably hire a small firm to assist him.
Sometimes nothing. Transmission? Right now, consumers associate the word transmission with transmissions. Seems pretty straightforward. Lots of companies have transmission in their names, the names of products, etc. Nobody's suing anyone else. How can this be? Isn't there one big, faceless, avaricious company that can sue all the little companies back into the stone age?
Well, we kind of answered our own question here. Because transmission isn't automatically associated with any one company or product (right now), anyone can use it, pretty much as they see fit.
Coke? Seems straightforward as well. Instruct your lawyer to fire those other lawyers, this one we can figure out ourselves. Or can we?
Coke is an industrial product; it's a specific byproduct of smelting metal. If you were in the business of dealing with this industrial product, you could probably name your company "American Coke" if you wanted. Now, it would be a good time to hire those lawyers again; but you might win. It's a bona fide name for you and what you do with what. The Coca-Cola company's lawyers are going to visit you, maybe. You might end up spending a lot of money defending your name, if they take it that far. But you might win. Or not. Who knows?
Coca-Cola's lawyers are going to have to prove that "American Coke" is likely to cause confusion amongst consumers with the soft drink "Coke", which they do have an intellectual property interest in. Sometimes people name things deliberately, and they intend to ride on the other product's coat tails. Usually, the courts take a dim view of that.
But sometimes it's a perfectly reasonable name for a company, perhaps a company in the coke business; and people who are in the business of knowing coke sometimes comes from a blast furnace instead of a 7-11 would not be in the least confused between American Coke and the Coca Cola Company and their respective products. American Coke would do well to listen to the huge law firm the smaller law firm hired by the lawyer, when they suggest they not take the founder's suggestion of a red-and-white corporate logo, and instead make it blue and black. Stuff like that helps sway the court in your favor.
"Windows" can be part of a company that actually makes, sells, fixes or otherwise deals with transparent stuff we use as building materials. Microsoft can do little about it; the "dictionary word" thing is partly at play here. But, if you're in the computer software business, now we have a potential confusion with your "Windows" and Microsoft's "Windows"; could consumers be confused that one was associated with the other? Probably, yes. Your lawyers will tell you if you won this one or not, but I'd settle, myself.
Note: I'm not going to argue any of this with anyone. It's just a hypothetical example. Get over it. We'd both end up needing lawyers to figure it out anyway.
Back on topic
The poor kid; MS played dirty pool here. Had his first instinct been to just renamed his product "Desktop Defender", he would probably be the one in position to sue MS since his product was there first and was in a similar market (broadly, computer software for MS Windows OS computers). As it was, they played a standard "Art of War" tactic on him by making him assume it was "Windows" they were in a huff about.
he consulted with a law student and figured that the student knew everything there is to know. he signed away his rights. this isn't capitalism. it's stupidity.
More lies, huge legal bills and going bankrupt for nothing. That's what he would have gotten if he fought. M$ would have just used another name and no one would have known better.
What a nice way to treat your customers, Bill. Wouldn't it have been nicer to have used some of your money to, you know, make a deal and pay him for the name. No, you and your boys would rather threaten and steal from the people buying your software and making things for your crappy OS. What a beautiful ecosystem.
Friends don't help friends install M$ junk.
that under most trade mark laws that "Windows" bare and by itself, is not sufficiently distinctive to be a trade mark. Therefore we have "Microsoft Windows". However, IIRC it is possible for words to "acquire distinctiveness", and it is conceivable that should MS's strategy of acting as if they have a de facto trade mark on "Windows" might eventually succeed.
What is curious here, though, is that the situation isn't one covered by the usual layman's write-ups on trade marks. Oh, they cover distinctiveness, market classification, abandonment and genericide. But while it is clearly permissible to use a now invalid or abandoned trade mark, is it possible to claim it as your own?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
He said he contacted a law school friend. In the U.S., that is unauthorized practice of law, and his friend might end up finding it harder to be admitted to his state Bar. However, I'm not sure how it goes in Austrailia. As a U.S. law student, I've been warned enough times to keep my trap shut. Nothing beats the skill of an experienced attorney, and a law student is not.
What those who want activist courts fear is rule by the people.
The problem is, the vast majority of Windows-based attacks exploit vulnerabilities for which a patch has been available for a long time but not installed. A fully-patched Windows system, running basic security software like an anti-virus package and firewall, is also not vulnerable to these worms and viruses we keep hearing about. My home PC runs Windows, has done for years, and yet has never (to my knowledge) had any sort of virus, worm, spyware or other crap on it. How did that happen, if Windows is so inherently vulnerable?
The answer, of course, is that I have a clue how to set up and use a computer securely. It doesn't really matter whether it's Windows, Linux, OS X or otherwise. Equally, someone who doesn't patch their system regularly (if only by following Microsoft's recommended practices and allowing auto-update to do it for you, for those not knowledgeable enough to handle it themselves) is going to get screwed whether they're using Windows, Linux, OS X, or whatever, because they'll be the people running the vulnerable Linux configuration you cited.
Windows isn't great, and yes it certainly does have some daft security practices, but it's hardly the automatic suicide bid that Microsoft bashers make it out to be, nor are other operating systems and their associated cultures immune (despite half the Linux fanboys around here apparently believing that because they don't run everything as root, they're immune to all attacks).
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
If people would RTFA, they would see that:
... He said it's actually good, in some ways, to see the name of his discontinued product put to use by Microsoft in such a prominent way."
1. "he had stopped working on his Windows Defender program nearly a year before that point."
2. "he said in an interview Monday that he would have given the name to Microsoft just the same had he known the company wanted to use it.
3. "it's common for companies not to disclose that type of information in such cases."
Another sensationalist crap story on Slashdot.
A quick howto on dealing with such advances from Microsoft (or your favourite demonic corporate entity if that is different):
Of course if the lawyer tells you that you don't have a leg to stand on, you might want to think about settling before just going to the press.
Burns: We're building a casino!
McAllister: Arrr. Give me 5 minutes.
Seriously, this is just a countermeasure. As we have seen in the past, if MS decided to launch the product with that name, guys like Adam can take them to court and domain damages that are exponentially higher than the total value of his entire company. MS just got smart and started playing the game. If you don't like it, hate the game.
Saying Java is nice because it works on all OS's is like saying that anal sex is nice because it works on all genders.
Once you come to the realisation that all larger corporations (Microsoft, Sony, Boeing etc.) are sociopaths this sort of behaviour no longer comes as a surprise. There is no sense of fair play, no altruism, no community spirit, no ethics that are not overridden by the almighty {insert favourite currency here} ... nothing.
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button