Ruling Clears Way For Lindows Trial 385
shystershep writes "Various sources are reporting that Microsoft's appeal in the Lindows trademark infringement suit was rejected by the Ninth Circuit Court of Appeals. At issue was the trial judge's decision [PDF link] to 'instruct a jury to consider only whether 'windows' was a generic term before November 1985, when the first version of Microsoft's Windows was released.' This is significant because a generic mark receives no trademark protection, and the ruling that the jury must make that determination based only on the use of the term before 1985 is a major blow to Microsoft."
What it all means (Score:5, Informative)
the Court declares it will instruct the jury to consider whether the Windows mark was generic during the period before Microsoft Windows 1.0 entered the marketplace in November 1985. Furthermore, the Court will not instruct the jury that even if Windows were generic prior to November 1985, the trademark would nonetheless be valid today so long as the primary significance of the term today is not generic.
This doesn't mean that the judge has ruled that "windows" is generic, but it does mean that Lindows can (try to)point out to the jury that "windows" was used generically before Microsoft started using it. If it is generic, Microsoft loses their trademark protection in that name (althought "Microsoft Windows" would probably still be valid). Now it's all about the status of that term in the computer industry, including the commercial side of it, prior to 1985.
Re:What it all means (Score:5, Interesting)
Re:What it all means (Score:2)
Re:What it all means (Score:5, Informative)
Re:What it all means (Score:5, Interesting)
And would have called them WINDOWS if there had been more than one of them, unless you can show they actually called more than one window WINDII.
I seem to recall seeing a quote somewhere that MS had intentionally named their products after generic terms to avoid being sued themselves. Hence, WORD instead of WORDPERFECT or WORDSTAR or WORDSTUFF, WINDOWS instead of OS/2, SOLARIS, etc.
The cats are out of the bag, its too late to close the gate now.
Re:What it all means (Score:2)
Re:What it all means (Score:4, Informative)
Re:What it all means (Score:3, Informative)
As has been said one million times...
IIRC, X dates back to mid '87 (perhaps earlier, but not that much)
Re:What it all means (Score:3, Interesting)
Anyone have a Borland Sidekick 1.0 manual? They may have used the word 'windows' to refer to their pop-up panels, especially the scrollable parts for the editors.
Re:What it all means (Score:5, Informative)
Anyone who read this book would find it immediately obvious that all of these people considered "window" an absolutely generic term, and MS-Windows featured on the periphery of their knowlege, if at all. In fact MS-Windows was only even mentioned twice in the book that I saw. One was in a sentence like "as compared to non-UNIX GUI systems, such as Macintosh or MS-Windows..".
The other was a particularly damning to MS's case little chapter called "10 years of window systems", which was a transcript of a talk given describing something like 8 different window systems developed in the previous 10 years and tracking their evolution, starting with the early smalltalk-based systems at PARC. MS-Windows was mentioned only in passing when a tiling-based window manager was used, prompting the presenter to say "this system is basically the exact same one used by MS Windows".
Reading this book it could not help but be excruciatingly obvious that everyone involved in this book considered "window" an absolutely generic term, "window system" the generic term for the thing they were describing, and that Microsoft had absolutely nothing to do with this. And this was not just some peripheral geeky thing like Linux to some extent is today. This was before the PC truly caught hold. The persons represented in this book were the people responsible for the heavy lifting in the computer industry at the time, both on the academic side of things and in terms of corporate representatives of the UNIX systems discussed.
This book was from 1986 but I'm certain finding something similar from 1984 would be effortless.
Re:What it all means (Score:4, Funny)
Re:What it all means (Score:5, Insightful)
I just want to clarify what you said. According to what you quoted, the ruling didn't merely allow Lindows to argue that "windows" was a generic term prior to the release of MS Windows 1.0. The ruling is against a Microsoft argument that, even if "windows" had been a generic term prior to 1985, it has become an MS term.
The ruling says that what the jury will consider is only whether the term "windows" was generic in 1985, before Microsoft Windows 1.0, and if the jury finds that it was, then Lindows wins.
I think this is good news, because I believe Lindows has already produced evidence that Apple and Xerox had been using the term.
Re:What it all means (Score:3, Insightful)
Re:What it all means (Score:4, Insightful)
If 'windows' is NOT trademarkable due to being in common usage before being hijacked by Microsoft, then ANYONE can use ANY PART of the name and it does not matter that Microsoft was using it first - they have no claim on it just by using it first.
Yes, Lindows seems to have made a blatant ripoff of their competitors name for OS software, BUT IT COULD NOT HAVE BEEN TRADEMARKED in the first place as it was a generic term in the industry BEFORE MS hijacked it for their product.
Lindows IS riding on Windows' success - but it is legally (if not morally) allowed as Microsoft had/has no prior claim legally (and possibly morally) to the word.
"as close as possible to a blatant trademark infringment."
If the court rules the term generic, there is no trademark, so no trademark infringment - now or ever.
"identifiable simply because of the trademark of their competitor."
Again, if the term was in general usage in the industry prior to Microsoft stealing it for themselves, the court will have to rule there is no trademark - which means ANYONE can use the word Windows (or any non-trademarked variation) in their name.
"You keep using that word. I don't think it means what you think it means." PB quote, horribly mangled to suit the occasion by me.
Re:What it all means (Score:3, Insightful)
Re:What it all means (Score:3, Informative)
So even if the court rules that Microsoft can keep its "Windows" trademark, in order to prohibit their competitors from using "Lindows" they have to show not just that it's a blatant rip-off of their name, but that consum
Microsoft Hacked? (Score:4, Funny)
Says "Owned by OutLaw Group"....
Anyone want to get a mirror up before microsoft fixes it
Re:Microsoft Hacked? (Score:5, Informative)
Please be kind.
Would do, but... (Score:2)
Another Mirror (Score:2, Informative)
Re:Microsoft Hacked? (Score:3, Informative)
google.com link here [google.com]
Re:Microsoft Hacked? (Score:2)
How about the Wayback? (Score:2)
Does anyone know how to provoke the Wayback machine into archiving a version for posterity? B-)
Re:Microsoft Hacked? (Score:2)
Enjoy. (I'm update the mirror to be a bit more robust at the moment)
Re:Microsoft Hacked? (BTW, Parent is Mirror) (Score:2)
That's where the groups homepage is, apparently some sort of hispanic organization.
If you want to bug them on IRC: Brasnet (irc.brasnet.org 7002) knal: #OutLawGroup
That's my work for the day. Enjoy.
Re:Microsoft Hacked? (Score:3, Funny)
It's taken how long (Score:2)
Re:It's taken how long (Score:2, Informative)
that said, i'm rubbing my hands waiting for the downfall of micro$oft to happen at trial...
Re:It's taken how long (Score:3, Interesting)
Re:It's taken how long (Score:4, Informative)
1) Once a term is determined to be generic within the category, it cannot be made ungeneric
2) The jury should consider the genericness of the term "windows" in the field of computers *prior* to Microsoft's usage.
Microsoft asked the judge for permission to appeal this ruling now instead of after the trial is over (an "interlocutory appeal"), and it went to the 9th Circuit. According to the press release, last week the 9th Circuit rejected Microsoft's appeal, apparently without even hearing oral arguments from either side. This response was actually quite fast - if they had allowed the appeal, the case could have dragged on for another two or three years.
At this point, the trial judge's ruling stands, and Microsoft's burden is now very high - they must show that "windows" was *not* a generic term prior to 1985 *and* that consumers are likely to be confused by the "Lindows" brand.
Explanation, Mirror (Score:2, Informative)
I don't know how well linspire can handle this, so Here's a mirror [t28.net].
Who to root for? (Score:3, Insightful)
The Elmer Fudd principle (Score:5, Funny)
MS stole from the commons (Score:3, Insightful)
As did Microsoft. MS stole a word from the commons and benefitted from this. You benefit in the beginning as your product is selfdescriptive, later on you pay a price since you can't protect it.
Take your oick and live with it. MS did but refuses to live with their decision. They deserves to lose and they will lose. If Lindows for some obscure reasons looses they will win an appeal and the case will be remanded. Windows as a MS tradem
You have good points.... (Score:3, Insightful)
Re:Who to root for? (Score:2, Insightful)
I know what you mean. After thinking about it for a while, I decided that I have to side with Microsoft here. It's true that they used a common word as their name, but Lindows was just riding the success of Windows. It was stupid for Lindows to use that name in the first place...like forming your company and calling it "Microsopht" - you're gonna get blasted and you won't win.
I have no problem with people using common words as their trademark names, as long as the
Re:Who to root for? (Score:5, Insightful)
Except that is the EXACT opposite of a trademark. Generic terms are ones that cannot be trademarked. The simple fact is that MS's trademark for Windows was denied three times before they managed to appeal it. Windows should have never been a trademark. No one really care about you legal opnion, clearly you have zero understanding of trademark law.
Re:Who to root for? (Score:3, Interesting)
"Apple" or "Excel" are generic words, yes, but they hadn't been applied to the use of a computer company or spreadsheet before. Apple
Re:Who to root for? (Score:3, Informative)
Its also clear that "microsoft windows" is a trademark. "Windows" which is a plain word with no specific identifier isnt. "Chair' is not, "Aeron Chair' is. This should be obvious to anyone not a MS lawyer.
Not just for trademarks, either. (Score:3, Interesting)
It's not just trademarks, either. They also coopt inconvenient technical terms and redefine them
Re:Who to root for? (Score:5, Interesting)
Anyone who thinks they name their product Lindows to "ride on the success" of Windows is missing the point.
It wasn't stupid"for Lindows" to do this...it was slyly calculated. They knew exactly what they were doing: by naming their product "Lindows" they were going to force Microsoft to defend its trademark -- a case they thought they could win.
If they had followed your example ("Microsopht") then that indeed would have been stupid, because that's an easy case of infringement.
Their product naming strategy was simply bait to force a court to re-evaluate Microsoft's tenuous trademark. Microsoft knows this full well, which is why they wanted the case thrown out.
I've got no problem picking. (Score:4, Interesting)
I've got no problem picking Lindows on this one.
The Lindows distribution is apparently intended to be an open-source workalike of Windows, convenient for former Windows users trying to switch to Linux. The mark they chose clearly says to me that it's NOT windows but it's LIKE it (and has something to do with Linux). "Brand 'L'" Try it and it MAY work well enough for you or it may not. No confusion whatsoever.
However this case will probably be decided on another basis: Whether Microsoft is attempting to privatize a generic mark. And IMHO "Windows" as applied to software windowing interface systems was already in use well before they coined "Microsoft Windows" and then dropped the "Microsoft". If the jury agrees with this, "Windows" becomes a generic once again and coinages like "Lindows" are fair game.
If you're trying to say you have a Linux based Windows system (bearing in mind that "Windows" is NOT a trademark) that is NOT Microsoft Windows but IS a member of the same category and a convenient alternative to the Microsoft product, what ELSE could you mark it to encapsulate that message?
Why is this an issue? (Score:4, Funny)
Re:Why is this an issue? (Score:2)
If Microsoft's trademark on "Windows" is invalidated in the USA, will that affect their trademark elsewhere? Is this all based upon an international "we'll honor yours if you honor ours" system? In other words, is their "Windows" trademark in, say, the EU simply based upon their USA trademark, and will it then be invalid in the EU if it's ruled invalid in the USA?
Wouldn't that be ironic, if they lost the "Windo
Re:Why is this an issue? (Score:2)
Re:Why is this an issue? (Score:2)
2 Words (Score:3, Insightful)
Re:2 Words (Score:3, Informative)
Re:2 Words (Score:2)
Re:2 Words (Score:2, Insightful)
It doesn't matter that the trademark and official name is something else in this context.
2 More Words (Score:2)
"X Window System" is trademarked by The Open Group. "Windows" is not.
Re:2 More Words (Score:2, Insightful)
Windows exists since middle ages (Score:2, Insightful)
Too late for them? (Score:5, Funny)
Ghosts of Pentium? (Score:5, Insightful)
Microsoft might be facing this themselves now. Let's face it - before 1984, the computer term "windows" existed. Everybody with a GUI called their interface a "window" and a collection of them was a set of "windows". MS might very well lose the case.
Short run: they call future OS's by their names and actually release "MS Longhorn 2003", much like Apple has "OS 10.3 Panther". Lindows will be able to sell their product (in the US at least) under the Lindows name.
Long run: More lawsuits between MS at Lindows anyway. Like I'm so surprised.
Re:Ghosts of Pentium? (Score:4, Informative)
Re:Ghosts of Pentium? (Score:2, Informative)
Come again? (Score:4, Funny)
Re:What logic? (Score:3, Insightful)
Because of this, trademark could be lost. It would be like somebody in 1940's calling their product "The Ford Car", and forbidding anyone else from calling their product a "car".
Prior use of "Windows" (Score:2, Interesting)
The first release of X was in 1984. Macintosh was also released in 1984. It shouldn't be too hard to document that the term "windows" was used generically in those systems prior to 1985.
Other examples?
Re:Prior use of "Windows" (Score:2, Insightful)
Re:Prior use of "Windows" (Score:3, Insightful)
Re:Prior use of "Windows" (Score:2)
Re:Prior use of "Windows" (Score:3, Informative)
Commodore was showing the Amiga 1000 at that time with its Workbench desktop featuring windows.
GEM was out, I believe
Xerox certainly had the Alto available long before '84/'85
I'm not sure if the ST was available, but I know it was being talked about in '84 (see GEM above)
Fsck microshit and their generic terms (Score:2, Funny)
nope, they are gonna lose (Score:3, Informative)
According to dictionary.com (Score:3, Informative)
Sprechen Sie Orwellian? (Score:2, Funny)
"must must make"? Is that like double-plus make? Is this an excerpt from a Dr. Suess book?
Great! (Score:5, Insightful)
Why was it called MICROSOFT Windows? (Score:5, Insightful)
You don't hear other companies calling their products "the General Motors Cadillac" or "Schering-Plough Claritin" or the "Sanford Sharpie" or "Procter and Gamble Mr. Clean."
Anyone product manager would want their product name to be short and punchy. Nobody would tack the company name on unless the company's own legal department had opined that the name is generic, or close to generic, or in danger of becoming generic.
Re:Why was it called MICROSOFT Windows? (Score:5, Informative)
You do hear about the 'Dodge Caravan', the 'Gilette Sensor', the 'Nikon CoolPix' - in fact the company name is often prepended when it would not otherwise be all that clear what the product was. What's a 'Sensor' if it's not from Gilette? Would a 'CoolPix' sound like anything more than a disposable camera if it wasn't called the 'Nikon CoolPix'?
There are plenty of examples of company names being used or not used. In 1985 calling a product just plain 'Windows' might leave you thinking that it was a something used when building houses.
David
Re:Why was it called MICROSOFT Windows? (Score:3, Informative)
Prior art is a wonderful thing (Score:3, Interesting)
Lindows is trouncing them (Score:5, Insightful)
This will be a great show to watch.
I predict huge press. The ironic twist is that Microsoft brought this upon themselves! By suing Lindows, 'er Linspire - they brought into question their own trademark. Now that grenade is going to blow up in their face.
I hope they do not pay some money to settle since that's what they've been doing recently. Because it will be great to watch Gates try to deny all the windowing systems they ripped off when they greated their product.
Anyone also notice that Lindows doesn't care if they lose? This is playing out perfectly for them. They get a ton of press regardless and if they win they'll be in the history books. Or Microsoft will be for being so dumb to get their OWN trademark invalidated.
It's nice to see the little guy win one.
Lindows - DON'T SETTLE! We're counting on you.
Re:Lindows is trouncing them (Score:3, Funny)
I think is more of a hoby and about fun than it is about Money. Somehow, I don't see Michael "setteling out of court" if the case is going their way.
Lets not forget (Score:3, Insightful)
Windows and Microsoft (Score:5, Insightful)
I think though that "Lindows" is just a bit too close to the common practice of refering to MS Windows as just "Windows". They should name their product Linspire Windows or something similar. Which they may be already planning to do.
Microsoft is dead now... (Score:5, Interesting)
With this latest ruling, which is now appeal proof, Lindows has the wooden stake to drive through MS' heart.
This will be a fun trial to watch. Robertson, Gates and Ballmer are all scheduled to testify.
Well duh (Score:4, Insightful)
Tip: avoid naming your product after things that often break.
Under different circumstances (Score:4, Insightful)
This is big... (Score:5, Insightful)
Let's face it, even if they settle with Lindows, every one else will know that the Windows trademark is toast. So by settling Microsoft would only be setting itself up for more lawsuits and more payouts.
In fact, I predict that Microsoft will attempt use their loss of the Windows trademark to their advantage. They'll give Longhorn an entirely new name because they'll claim it's an entirely new OS.
How the case will ultimately be resolved (Score:4, Funny)
The predecessor to X-Windows (Score:5, Informative)
No worse... (Score:3, Insightful)
Using "ux" in trying to make someone think about the relationship of Unix to Linux
I see nothing wrong with either... I also see no complaints when someone writes an application with "win" in the name, or "98" ir "2000" or "xp".. etc..
regards
dbcad7
Exhibit Number One (Score:5, Informative)
There is one I found curious though. If you change the search to "user interface" and "Microsoft windows" [google.com] you get a single hit from Nov 16, 1983 about a spreadsheet program. Had MS been using that name for a precurser to Excel on Macintosh?
And personally, If I were going to to subpeona any documents, I would wan't to see the presentation slides used for this conference [google.com] where "Leo Nicora [sic *], Product Marketing Mgr, Microsoft Windows" was to give a talk on "window architectures". If a MS employee was documented using the term generically in march of 1984 it would pretty much be a slam dunk for Lindows.
Another strong piece of evidence is a few references to "Sun Windows" which may have been a development environment, or maybe it was just references to their window management implementation and isn't meant to be a brand.
* Nikora [google.com]
Permission denied, not appeal (Score:4, Informative)
What this means is that there can be a trial, that the trial will consider only pre-1985 evidence on genericness, and that Microsoft can appeal the result afterwards. This case is far from over.
hrmmm (Score:3, Funny)
now because of some fairly recent upstart compared to the time the term has been used, now has exclusive rights to call that their name and property?
It's like McDonalds Suing the McDonald Clan for use of "their" name. (which I think actually happened)
Re:Obligatory "truly scary" response (Score:3, Informative)
Overall, Microsoft and its employees were the country's fifth-largest political donor in the 2000 election -- contributing $4.7 million to politicians and their committees. Republicans received about 53 percent of that money. Overall, Microsoft and its employees were the country's fifth-largest political donor in the 2000 election -- contributing $4.7 million to politicians and their committees. Republicans received about
If it's secret (Score:4, Interesting)
Re:If it's secret (Score:5, Funny)
Credible source
SCO vs. Microsoft? (Score:2)
Re:MS has a point... (Score:5, Insightful)
If you let generic names become trademarks because the name has acquired secondary meaning, that is almost the equivalent of saying that with enough money, you can buy words out of the language. No one would let me enforce the trademark HOUSE for my brand of prefabricated homes. Windows should be no different.
In other words, when M$ says
"would the OS have been named Lindows if it wasn't for Windows?"
it is really saying:
"Don't look at the hole in the floor under the carpet. Just admire what a pretty carpet it is and believe you won't fall through if you walk across it."
Re:MS has a point... (Score:2)
http://www.apple.com/legal/appletmlist.html [apple.com]
I had gone to check to see if "Apple" was trademarked by them, but it isn't. It's a restricted mark. However, "Panther", "Develop", and "Techno" are all trademarked.
Re:MS has a point... (Score:2)
The issue in this case is whether the term "windows" is generic within the "computer" category.
Re:MS has a point... (Score:5, Informative)
I think you mean, "You cannot trademark a descriptive name."
For instance, "Crest" is a generic name, and has a long history of use before Proctor and Gamble received a trademark for its toothpaste product.
If they has instead tried to apply for a trademark for a metal shield product, they almost certainly would have failed to receive protection because "Crest" is a descriptive term for a shield.
Generic terms are fine for trademarks (see Scope, Tide, etc.) as long as they are not descriptive.
In this case, "Windows" may indeed be a descriptive term due to its use in the UI domain prior to 1985 -- and that's what the courts will have to decide.
You are correct, however, that the parent to your post is missing the point.
Re:MS has a point... (Score:2)
That's not the question that's before the court. There's no law against naming something that brings to mind what the competitor offers. There is related protection under trademark law. But for this to apply, the trademark must be valid, and this is the question the court is now trying to answer.
Not much of a point (Score:5, Insightful)
Re:MS has a point... (Score:3, Insightful)
Re:Insanity (Score:3, Insightful)
And by that shouldn't ms be suing companies for things like win-zip and win-ftp,. Isn't this just an attempt to capitalize on the Windows name? Don't they have to vigorously protect their trademark to keep it? How can they go after Lindows and not these others?
Re:"Open and Shut" Case! (Score:3, Informative)