Microsoft Sued Over Bing Trademark

Must wait to have all info by Thanshin · 2009-12-21 01:56 · Score: 2, Funny

I reserve my opinion until Mat Perry's declarations on the subject.

Re:Must wait to have all info by Anonymous Coward · 2009-12-21 02:35 · Score: 2, Funny

I reserve my opinion until Mat Perry's declarations on the subject.
I reserve my opinion until I have your opinion.

Trapped! by HNS-I · 2009-12-21 01:57 · Score: 5, Insightful

I wonder why people always start claiming their rights so late.

However, a trademark application for the name was not filed until May - when rumours about Microsoft's new product had already spread widely across the internet.
Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for "providing a website and website links to geographic information, map images and trip routing".

Aren't you obliged to protect your mark? Seems to me they have nothing on MS.

Re:Trapped! by Skapare · 2009-12-21 02:18 · Score: 5, Insightful

That's part of what makes this case potentially meaningless, in a moral sense, not a case law sense ... the fact that there are deep pockets involved and it may well be decided not on merits, but on who can throw enough money at protecting their interest.

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Re:Trapped! by Futile+Rhetoric · 2009-12-21 02:19 · Score: 5, Informative

"Prior art" is not a trademark-related term.
Re:Trapped! by Rary · 2009-12-21 02:30 · Score: 5, Informative

I wonder why people always start claiming their rights so late.
Because obtaining trademarks is costly and time-consuming, and because an unregistered trademarks is still a protected mark. This is a fairly small company who, until recently, probably found that an unregistered trademark was sufficient for them. Now that Microsoft has started using the name, they've decided they need to protect themselves further.

Aren't you obliged to protect your mark?
They are. They filed suit and began the process of registering their trademark. They've been using it since 2000, so they should have no problem getting the trademark, since the system is "first to use", not "first to file".

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"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Re:Trapped! by will_die · 2009-12-21 02:54 · Score: 3, Insightful

You are required to protect your trademark but the two companies have the trademark for different items.
THe company is sueing now because the amount of advertising Microsoft has put into the search engine Bing is causing confusion with the customers of the company that is sueing Bing. The time of the confusion is what would matter for the start of the lawsuit.
Re:Trapped! by lamapper · 2009-12-21 08:42 · Score: 2, Informative

True, but since trademarks are "first to use" not "first to file", showing that:
1) You had your brand to market first, and
2) Their brand is interfering with your brand
allows you to make an excellent case that it is your mark, and not theirs. Sounds a lot like prior art, though in the "I said it first!" version, rather than a "public domain!" result.
This is what I also know to be true, if you are in the market, for years, first using that, how the heck could another company get "trademark" over you, no matter when you and they file. Even if the St Louis company files (for trademark) after Microsoft, they have been using "Bing" for almost a decade longer. Its game over.
As for enforcing their rights to the term, they are doing it now.
And do not forget that there are two other players involved per the article as well. Per the article:

In addition, two other companies are also taking action against Microsoft over what they say are trademark infringements: a web-based shopping service called BongoBing and software company Terabyte, which has a product called BootIt Next Generation, or Bing for short.
So today we know about three possible claimants. Do you think we will hear about two more tomorrow? Three? Four? After all the term "bing" has been a huge part of the RAP scene since the beginning; probably apart of some other scene before RAP. This is all too funny, or err ironic.
I call it ironic, considering how Microsoft is quick to threaten other companies, (Tom Tom, etc...) most of which if they stood up to Microsoft, WOULD WIN!, but fear the protracted legal fees to fight, thus Microsoft usually wins by default, which is what they are counting on in 98% of the cases.
I am still looking for the company they sue, that stands up to them and causes their flimsy legal house of cards to fold and drop. One day and when that happens, as Microsoft knows all too well, their ability to enforce their BS patent trolling will die as well, at least for that patent, get enough of them to fail and it will be game over for that Microsoft side business as well. Microsoft knows this and they are selectively selecting companies like TomTom they know they can bully, because without threats, they lose. The company that can afford to stand up to this BS patent trolling on Microsoft's part will win! Many of us will celebrate. For the company that fights, even negative advertising is still advertising and they will get a boat load of it! After all Microsoft's PR machine works in overdrive spreading their FUD legal arguments, spread that FEAR, UNCERTAINTY and DOUBT, losers.
Even better, we are starting to learn today how much GPL and open source code has been included in their new software offerings (Vista, Windows 7, Office, etc...). After all they did not invent the term kernel and we all know it! I keep seeing more terminology that originated with Unix, Linux, GNU, FOSS and Open Source, creeping into Microsoft PR and news releases...its comical! Guess they have realized that if you can not beat them, join them!
Its Ironic when their Copyright/Patent trolling legal business tactics bite them in the butt! And they can afford to pay, can't they!
If Microsoft never attempted these BS legal tactics with other players in the market, I would have sympathy, however that shipped sailed long ago. And that ship has sailed, many, many times. I hope Microsoft is held accountable, as they should be.

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Re:Trapped! by Unipuma · 2009-12-21 21:35 · Score: 2, Insightful

In addition, two other companies are also taking action against Microsoft over what they say are trademark infringements: a web-based shopping service called BongoBing and software company Terabyte, which has a product called BootIt Next Generation, or Bing for short.
So today we know about three possible claimants. Do you think we will hear about two more tomorrow? Three? Four? After all the term "bing" has been a huge part of the RAP scene since the beginning; probably apart of some other scene before RAP. This is all too funny, or err ironic.

I think the fact that we have three claimants, who apparently aren't suing each other, but are suing a multibillion dollar company for a quick buck does indicate what the real motives behind their trademark protection action are. I mean, all three are apparently in the same market as Microsoft's search engine, but they are not protecting their trademark from each other? Sounds like they forfeited their trademark. Or do you only need to protect your trademark from large companies with deep pockets?

First time? by geekmux · 2009-12-21 01:59 · Score: 4, Informative

Uh, did this lawyer just fall off the turnip truck or what? Hate to tell you this Skippy Suit, but this ain't the first time Big Daddy Desktop has been in a courtroom for shit like this.

Microsoft definition of being "respectful" is cutting a check large enough to be bought out or go away.

Re:First time? by Z1NG · 2009-12-21 02:15 · Score: 5, Insightful

What makes you think the lawyer wants anything but a big check and free advertising for the company?
Re:First time? by NevarMore · 2009-12-21 02:37 · Score: 2, Insightful

What makes you think his client wants anything different.
Re:First time? by Gilmoure · 2009-12-21 03:04 · Score: 4, Funny

All right boys, buy him out!
*smash, crash, crush*
Mr. Simpson, you didn't think I got this rich by writing checks did you?

--
I drank what? -- Socrates

From TFA by ShadowRangerRIT · 2009-12-21 01:59 · Score: 5, Insightful

"...a trademark application for the name was not filed [by the plaintiff] until May - when rumours about Microsoft's new product had already spread widely across the internet."

"Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for 'providing a website and website links to geographic information, map images and trip routing'."

Says it all really. This company didn't even bother trying to establish trademark rights until two months after Microsoft, after news of the new engine had leaked. This screams trademark troll.

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Re:From TFA by Ephemeriis · 2009-12-21 02:19 · Score: 5, Insightful

Says it all really. This company didn't even bother trying to establish trademark rights until two months after Microsoft, after news of the new engine had leaked. This screams trademark troll.
I know absolutely nothing about this case, so take my comments with as much salt as you feel necessary...
But, just to play devil's advocate...
It could also be that the company never felt the need to establish trademark rights until news of the new engine leaked. Perhaps this Bing! company was fairly unique in the area it does business in... And if anyone said Bing! they thought immediately of this company... But with Microsoft's re-branded search engine folks now think of Microsoft instead of this Bing! company.

--
"Work is the curse of the drinking classes." -Oscar Wilde
Re:From TFA by Rary · 2009-12-21 02:36 · Score: 4, Insightful

No, it doesn't really say anything. They were a small fish happily using the trademark for the past nine years without any trouble. There was no need for them to register the mark, which is still legally protected even without registration. Trademark registration is expensive and takes years to complete, so many small companies are content to use unregistered trademarks.
However, now that Microsoft has stepped on their turf, they've decided they need additional protection, so they began the process of registering the mark. They should have no problem getting that registration since they likely have ample proof that they've been using it for nine years (marketing materials, print advertisements, maybe some TV commercials, etc).

--
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Re:From TFA by digitalunity · 2009-12-21 03:51 · Score: 2, Interesting

Actually it is Microsoft's fault. They have a responsibility, as all companies do, to be sure that their company and product names are unique enough in whatever markets they choose to do business that they will not cause confusion.
If consumers are harmed by the confusing similarity of product names or company names, this is a cause of action. Microsoft should have conducted a thorough search before naming Bing to be sure it wouldn't cause confusion. Or if they really liked the name Bing, they should have contacted this fellow to see if they could buy the name from him.

--
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
Re:From TFA by Rary · 2009-12-21 04:47 · Score: 2, Insightful

Trademark registration is expensive and takes years to complete, so many small companies are content to use unregistered trademarks.
Right but only if by expensive you mean about $500 and by years you mean 6 months. What would I know though? I've only actually been through the entire process recently. I'm sure you talking out of your ass is a much more reliable source of information.
I've never been through the process, but I've researched it, so I'll admit it's possible that you are right. However, when I researched the process in the past I was informed that it was more like about $2000 and 2 years, although 1) I was researching Canadian Trademark Law, and 2) it could take less time if you hire an expensive lawyer, but obviously that increases the cost.
Nevertheless, even if it's only $500 and 6 months, many small companies simply don't see any benefit in doing it, considering the fact that they are still protected with an unregistered trademark.

--
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein

Different fields by l2718 · 2009-12-21 02:00 · Score: 3, Insightful

Unless they are in the search-engine business, I'm not sure they have a trademark claim even if they were first. There is little likelihood of confusion after all.

bing.biz by mbone · 2009-12-21 02:06 · Score: 2, Informative

Hmm. Microsoft got bing.com a while ago

WHOIS results for bing.com
Created on..............: 1996-01-28.

The Wayback Machine shows the first Microsoft Bing.com site (Coming Soon!) in 2003.

Now, Bing! is Bing.biz which is registererd (in Madeira, Portugal)
Domain Registration Date: Wed Nov 07 00:01:00 GMT 2001

and it says ion the web site

Bing! is a small design firm started in 2000 in St. Louis, Mo.

So, I am not a lawyer, and this is not legal advice, but it looks to me that Microsoft started thinking about using this name back in 1996. If they didn't actually start using it until 2003, they will probably have to settle. If they did something back in 1996, as long as it was public, and they kept records, Bing! will lose.

Re:bing.biz by jimicus · 2009-12-21 02:19 · Score: 5, Insightful

Hmm. Microsoft got bing.com a while ago
WHOIS results for bing.com
Created on..............: 1996-01-28.
Correct me if I'm wrong, but surely all that means is someone registered it in 1996. It may have changed hands several times before being taken over by Microsoft.
Re:bing.biz by omnichad · 2009-12-21 03:24 · Score: 2, Informative

Only if that domain name was being used for something like search or advertising. If it was Bing Dry Cleaners (fictional), then they might own a trademark on Bing in the laundry services industry, but not search.
Re:bing.biz by txsable · 2009-12-21 03:55 · Score: 4, Informative

Microsoft did not own bing.com until March 4, 2009 when the domain ownership changed from "Davryn Pty Ltd" in Melbourne, Australia to Microsoft. Since 2002 the name bing.com has had several owners, including some guy in Michigan, someone in Denver; Palo Alto, CA; was transferred to an Australian company in 2007 until MS bought it in 2009. So no, Microsoft does not have long-standing claims on the Bing name, at least based on their domain registration.
(Reference: Domaintools.com Whois History records).
Re:bing.biz by omnichad · 2009-12-21 04:07 · Score: 2, Informative

AMF, Inc v Sleekcraft Boats, 599 F.2d 341 (C.A.9) 1979 established a precedent, including 8 criteria for trademark infringement - one of which being "Proximity of the goods" http://en.wikipedia.org/wiki/Trademark_infringement

Re:Yeah, right. by Yvan256 · 2009-12-21 02:19 · Score: 2, Funny

They sold the Lindows trademark to Microsoft for $20 million?

1. Start new Linux distro with a name that sounds like "Windows", but not too close (ex: not "Wimdows" or "Winblows"). At this point I would suggest "Bingdows" just for the fun of it.
2. Wait for Microsoft to sue for trademark infringement
3. Have Microsoft's case thrown out
4. Ask Microsoft to respect you
5. Profit!

But why would it be intentionally similar? by Anonymous Coward · 2009-12-21 02:28 · Score: 5, Insightful

If a business or trademark name is "deceptively or intentionally similar" to an established entity, it is technically in violation by definition.

The thing is that nobody had heard about Bing before MS. As such, MS wasn't trying to benefit from the fame that the name already had. If they began manufacturing footwear and chose Nike for their productname, I could see the motivation: Appearing to relate to an established entity in order to sell more. But creating a search engine called "Bing"? I don't think any of us had the first reaction of "Ah, like that Bing Information Designers?" but we all thought "Ah, what a stupid name. :D"

I'm not saying that MS didn't know of the company. They certainly should have researched more. But I can't understand why would they intentionally choose something deceptively similar to something that nobody had never heard of before. While MS knows that they can face anyone in court, I would assume their sizeable legal team had forced them to adopt strict and heavy processes to avoid this kind of stuff. To me this seems more like a fuckup committed by some very low level employees than anything decided by high management.

Re:But why would it be intentionally similar? by thisnamestoolong · 2009-12-21 02:45 · Score: 5, Funny

I think the reason they did not know about Bing! was because they tried to find them with Bing. Should've googled it...

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Re:But why would it be intentionally similar? by Stregano · 2009-12-21 02:47 · Score: 3, Interesting

I am unsure if it is a matter of how famous the company is or how large they are.

I think it is a matter of: even in whatever city they are in, now when they even do something like put something in the classifieds or whatever they do, it will say Bing and people will directly think of Microsoft's Bing.

I could see that hurting business.

--
The world is how you make it
Re:But why would it be intentionally similar? by Gilmoure · 2009-12-21 02:56 · Score: 4, Interesting

But then again, Sony sued Sonny's Restaurant in Boston (I think), because people were pronouncing it 'so-nee'. Sony won.
Ok, this might only relate tangentially to the story but I still think it's funny in a flat cat kinda' way.

--
I drank what? -- Socrates
Re:But why would it be intentionally similar? by Anonymous Coward · 2009-12-21 03:31 · Score: 3, Interesting

I agree with everything except the "what a stupid name" part. When I first heard of that name for a search engine it gave me a case of the real LOLs. After all, naming it Bing Is Not Google (bing)? Hilarious! I would have thought more of the GNU crowd would by into a name like that...
Re:But why would it be intentionally similar? by Anonymous Coward · 2009-12-21 03:32 · Score: 2, Funny

"That's a good name, let's steal like we do all our IP"
Yeah, but... Bing? That's like breaking into Fort Knox so that you can steal paper clips.
Re:But why would it be intentionally similar? by bdenton42 · 2009-12-21 04:10 · Score: 2, Interesting

Unless you're talking about a different case it appears to be Sony Corp vs Sony's Restaurant. So it is the same name, although given that Sony Corp doesn't sell any food that I'm aware of I'm not sure why they got excited about it. http://www.encyclopedia.com/doc/1P2-1331412.html
Re:But why would it be intentionally similar? by Gilmoure · 2009-12-21 04:28 · Score: 2, Informative

bdenton42 found the details. Turns out the lady running the restaurant in Baltimore (knew it was some city starting with 'B' east of the Mississippi) was known as Sony (same spelling) and was trying to register her restaurant in the phone book as Sony's. And so yeah, Sony defended their trademark, just in case anyone getting a Philippino based lunch got confused.
As for the Sonny's part, yeah, that's just my age creeping up on me. Coulda' swore I remembered the detail part of it being 'spelled differently but sounding the same.'

--
I drank what? -- Socrates

More by Quiet_Desperation · 2009-12-21 02:56 · Score: 2, Funny

I hear Zombie Bing Crosby is none too pleased, either.

Wouldn't it be a good thing? by Nemyst · 2009-12-21 03:01 · Score: 2, Insightful

Am I alone thinking that if this company wins their suit maybe Microsoft would actually rename their search engine to something not as cringeworthy?

Re:Wouldn't it be a good thing? by SgtChaireBourne · 2009-12-21 06:30 · Score: 2, Interesting

Am I alone thinking that if this company wins their suit maybe Microsoft would actually rename their search engine to something not as cringeworthy?
You're both alone and wrong. It's just a buggy, ad-ridden front end for the WolframAlpha search engine and serves as a distraction from what Microsoft Activist Icahn and his attack dogs started doing to Yahoo.
After re-branding Live Search as "Bing", to leave the baggage associated with the old name, they also struck a deal so that Bing is a front-end for Wolfram Alpha plus whatever Live Search might have had. So to get those results unmodified, you don't have to go through M$ filter, you can go straight to WolframAlpha skipping the middle man. Not at all difficult.
There are even meta-search engines that can cross-search both Google and Wolfram Alpha for you. For Firefox there is the Goofram add-on which lets you search both at the same time. If you're on Opera, Safari or Chromium, there are also search customization options there, too

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Re:fp by Anonymusing · 2009-12-21 03:37 · Score: 2, Funny

Are you suggesting a new name for Bing -- perhaps "Bung"?

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Re:Apple by stormy_petral · 2009-12-21 04:46 · Score: 2, Informative

Apple got into the music business alright, some 25 YEARS after originally taking on the Apple name for a tiny garage-based company in a business that at the time seemed very unrelated to selling Beatles music. And ultimately Apple Computer PAID an undisclosed sum (translation: a boatload of cash) for the right to use the name in music marketing. Apple and Apple did have an agreement prior to the most recent one, its just that Apple Comp eventually grew out of it, and it had to be settled again, and indeed it was.

Actually, Apple DID grab a very related trademark: the iCal name was already in use for some time by another software calendar maker, Brown Bear software. The Brown Bear software site now explicitly states http://www.brownbearsw.com/ical/icalfaq.html that Apple is using the iCal mark by license, and brownbear is still selling their own product with the iCal name. All without benefit of any headline lawsuit that I ever saw.

Re:Apple by Zorque · 2009-12-21 05:09 · Score: 2, Interesting

Naming your company after a common object is hardly stealing, I don't know where you would even have gotten that idea. You're not an Apple Records attorney, are you?

One word by kimvette · 2009-12-21 06:03 · Score: 3, Informative

Microsoft 'always respect[s] trademarks and other people's intellectual property,

Stacker.

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Re:Apple by ducomputergeek · 2009-12-21 07:03 · Score: 2, Informative

Apple Computer paid Apple Records some $500M or so to buy the trademark rights from the record company in 2007.

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Microsoft Sued Over Bing Trademark

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