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A Setback For Microsoft In Lindows Trademark Case 414

One Louder writes "Lindows.com is claiming victory in an important ruling in the Microsoft case - the judge ruled that the jury must only consider the genericness of the term 'windows' prior to the introduction of Microsoft's products, and that a term that is generic cannot be made ungeneric. Of course, in Microsoft's home turf, the story has a different spin. In other countries, they're telling judges that Lindows.com is an imminent threat requiring immediate injunctions, while in the United States, they're dragging the case out, perhaps for years, by appealing issues in a trial that hasn't even happened."
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A Setback For Microsoft In Lindows Trademark Case

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  • by Anonymous Coward on Wednesday February 11, 2004 @08:55AM (#8247579)
    Windows is a trademark.

    Lindows is a tradmark.

    Completely different thing.
  • Sigh (Score:5, Insightful)

    by m00nun1t ( 588082 ) on Wednesday February 11, 2004 @08:56AM (#8247584) Homepage
    ...while in the United States, they're dragging the case out, perhaps for years, by appealing issues in a trial that hasn't even happened

    Why must the /. "editors" put a negative spin on everything Microsoft does? If Red Hat were in a law suit to defend their most valuable brand name, would you expect them to lie down and play dead or fight it? Of course Microsoft (or any other company) is going to fight something like this. Given that the directors have a legal obligation to provide shareholder value, it could be argued it would be illegal for them not to put up a good fight!
    • Re:Sigh (Score:5, Funny)

      by jbrocklin ( 613326 ) on Wednesday February 11, 2004 @09:01AM (#8247609) Homepage Journal
      Of course Microsoft (or any other company) is going to fight something like this.

      Unless they were going to do something like stop using the "windows" term...switching instead to a name of a kind of bull. But that's just crazy talk.

    • Re:Sigh (Score:4, Insightful)

      by Pecisk ( 688001 ) on Wednesday February 11, 2004 @09:01AM (#8247611)
      See, Red Hat is not so something generic as Windows. It is simply as that. And it's annoying as Microsoft actually IS a monopoly. So people are getting anoyed that they are claim that their trademark (aka "Windows" is become something that belongs to Microsoft. I'm really surprised how they got a trademark in first place. I will trademark Mars, for example, now, wait...it isn't already taken? :)
      • Re:Sigh (Score:3, Funny)

        by ktanmay ( 710168 )
        Yeah, I know, how can an organisation trademark a word that's a common noun? If it were a proper noun (like Microsoft) I can, I guess, accept the fact that there is some room to negotiate.

        If tomorrow some guy comes up with an OS called Blue hat, I don't think it will create too much noise other than a +5 Funny comment.
        • Re:Sigh (Score:5, Insightful)

          by clontzman ( 325677 ) on Wednesday February 11, 2004 @10:42AM (#8248495) Homepage
          Yeah, I know, how can an organisation trademark a word that's a common noun?

          People do it every day...

          Apple
          Tide
          All
          Bounty
          Quake
          All
          Surf
          Maci ntosh
          Word
          Excel
          Illustrator

          It's completely reasonable to trademark common words for narrow uses and it's completely reasonable to expect that those trademarks would be protected.

          Here's a little exercise: name your next Linux distro Lacintosh and count the milliseconds until Apple serves you with a cease and desist order... and they'd be right to do so.
          • Re:Sigh (Score:3, Insightful)

            by ktanmay ( 710168 )
            I was referring to common nouns, so Macintosh dosent really count, but yes, point well taken.
            I still feel that trademarking common nouns cannot be legally justified, and fighting over owning them is too stupid to be classified as a human activity.
          • Re:Sigh (Score:5, Insightful)

            by jkabbe ( 631234 ) on Wednesday February 11, 2004 @11:21AM (#8248915)
            Trademarks like Apple and Macintosh make more sense because prior to their introduction as a company/product no one would have associated them with a computer (or its function).

            But since Word is a common noun Microsoft can't sue someone who comes out with another product like (just pretend the order of release was different) WordPerfect claiming they are violating the trademark on Word for computer software. The term "word" is common and Microsoft can't trademark everything that includes or is derived from that term.

            And that's why Microsoft is going to lose - "window" was a common term before the release of Microsoft Windows. Lindows couldn't come out with a product called Windows because that name is trademarked. However, there is nothing to prevent them from coming out with another product based around the common nouns "window" or "windows"

        • [H]ow can an organisation trademark a word that's a common noun?

          Under normal circumstances, it wouldn't be possible to register a common noun like "Windows" as a trademark for a windowed operating system, since it is not only an ordinary word in the English language, but also a word that describes the product. After all, the reason why it was called Windows was that it could handle windows on the screen, which MS-DOS couldn't. Such marks are called "descriptive", and can normally not be registered at

      • Re:Sigh (Score:5, Interesting)

        by Jondor ( 55589 ) <gerhard@NOspam.frappe.xs4all.nl> on Wednesday February 11, 2004 @09:49AM (#8247938) Homepage
        Yeah, but was the complete name not "Microsoft Windows" as opposed to "X windows" or "glass windows"?

        So the real issue here is how much "Microsoft Windows" looks alike "lindows"..
    • Re:Sigh (Score:3, Informative)

      by bhtooefr ( 649901 )
      Read it again. One Louder, who submitted this story, put that in. However, timothy didn't cut it out.
    • Re:Sigh (Score:5, Insightful)

      by John Seminal ( 698722 ) on Wednesday February 11, 2004 @09:07AM (#8247644) Journal
      What is in a name? A rose by any other name is still a rose.

      I think these cases boil down to confusing people about what they are buying. If you want windows, or red hat, you should be able to go to your computer store, walk to the isle with those products, and not be confused such as looking at three nearly identical boxes with different software. I doubt anyone would be confused if they went to a store and saw Windows next to Lindows.

      Same thing with Red Hat. So what if I start a company called Blue Hat? Big deal. As long as I do not try and steal the other company's identity. Anyways, there is something called competition which I think is good. As long as there is no trickery to decieve customers.

      • Re:Sigh (Score:5, Funny)

        by Evil Adrian ( 253301 ) on Wednesday February 11, 2004 @09:21AM (#8247730) Homepage
        I doubt anyone would be confused if they went to a store and saw Windows next to Lindows.

        So it would be perfectly OK to start a car company called Yolkswagen, and sell a Getta model?
        • by Secrity ( 742221 ) on Wednesday February 11, 2004 @10:51AM (#8248586)
          IANAL and this pertains to US (maybe others). No it would probably not be OK to advertise or sell a car from a company called Yolkswagen because Volkswagon is a registered trademark. You also could not sell software named Microsloth Windows because Microsoft Windows is a trademark and there would be confusion. The question is whether Microsoft can claim a trademark on the word "windows" in the context of software. I believe that Xerox called their invention that displayed a window-like object on a screen a "window" and I believe that Apple also calls their window-like object displayed on a screen a "window" -- and they both used the term "window" prior to Microsoft trademarking and selling a product named "Microsoft Windows". Trademarking the word "windows" is the same as trademarking the word "automobile". Imagine Acme Automobile (TM) suing Smith Automobile (TM) for trademark infringment over the word "automobile".
          • Being around too long, I remember when "Microsoft Windows" came out. At the time, there were several competing systems that ran on top of DOS: GEM from DRI, TopView from IBM, and (I think) DesQView from Quarterback(?). They were all referred to as "windowing" systems in the magazines.
        • Why not? (Score:3, Interesting)

          by phorm ( 591458 )
          Enjoy driving around in your Yolkswagon Getta...

          I'm going to relax listening new panaphonic stereo... maybe catch some TV on my new magnetbox, and perhaps even play around with my Sorny laptop for awhile...

          The Simpsons was a little broad about the point of offbranding items with similar names, but it's not like it hasn't happened in other industries before. When nobody is mistaking product X for product Y, there shouldn't be a problem.
      • "I doubt anyone would be confused if they went to a store and saw Windows next to Lindows."

        That's not the point; of course people can read the difference between "Windows" and "Lindows".

        What might not be immediately apparent is the fact that they're entirely different products, sold by entirely different companies. Is it really a far-fetched possibility that someone less computer-savvy than the average Slashdotter might mistakenly think that Lindows is a low-cost/value version of Windows, both made Mic

      • What is windows?

        Are you talking about:
        1) those things you look out in your home or car?
        2) a "window" or panel, as in Xwindows that display information from a program to a user on a computer screen?
        3) Microsoft's Window family of products?

        That is why using generic terms is bad.
    • Re:Sigh (Score:2, Funny)

      by fatgeekuk ( 730791 )
      Did RED HAT start a lawsuit when Yellow Dog Linux came out...

      Yellow's a colour, just like red...

      and

      Dog, well DOG has the same number of letters as HAT... and you could wear one on your head too...
      (or is that just me! oops, did I type that out loud)
    • Re:Sigh (Score:5, Insightful)

      by mpe ( 36238 ) on Wednesday February 11, 2004 @09:24AM (#8247751)
      Why must the /. "editors" put a negative spin on everything Microsoft does? If Red Hat were in a law suit to defend their most valuable brand name, would you expect them to lie down and play dead or fight it?

      Microsoft have a weak trademark in the first place. One which is descriptive of their software. Red Hat has a more meritable trademark since coloured headgear has no obvious connection with their product.

      Of course Microsoft (or any other company) is going to fight something like this.

      Maybe Microsoft should have come up with a better trademark in the first place.
      • Re:Sigh (Score:5, Interesting)

        by GregWebb ( 26123 ) on Wednesday February 11, 2004 @10:00AM (#8248046)
        As I recall, Microsoft tradermarked 'Microsoft Windows' and were explicitly told that 'Windows' would not be trademarkable. Whereas Mr. Robertson sells his product as 'LindowsOS'.

        These just aren't 'identical or confusingly similar', as would be required. MS are trying to intimidate to extend their trademark.
        • Re:Sigh (Score:5, Informative)

          by MarkusQ ( 450076 ) on Wednesday February 11, 2004 @10:47AM (#8248557) Journal

          As I recall, Microsoft tradermarked 'Microsoft Windows' and were explicitly told that 'Windows' would not be trademarkable. Whereas Mr. Robertson sells his product as 'LindowsOS'.

          I recall that as well. In fact, I even recall researching it at USPTO.GOV, and confirming it. So imagine my shock when, in a recent /. debate, I was told that this was not the case, with provided USPTO.GOV links. I searched again, and could no longer find the restriction.

          Specifically, I recall that:

          • Microsoft's first application for the trademark was in 1983 for some sort of audio visual software, not for MS Windows-as-we-know-it.
          • That the granted trademark for the "graphical computer user interface software and related manuals" was specifically for "Microsoft Windows" and/or "MS Windows" not just Windows.
          • There was a "restriction letter" of some sort that limited their mark to 1) including a logo, and 2) including their name or initials, and/or some product designation (e.g. Windows NT) for which they may have had to apply seperately.
          But this isn't what the second search seemed to show.

          I've got no idea what happened, but I'm glad someone else remembers it the way I do.

          -- MarkusQ

          • Re:Sigh (Score:4, Informative)

            by dpille ( 547949 ) on Wednesday February 11, 2004 @11:23AM (#8248935)
            I think it still does show (more or less) what you're thinking of. The first registration [uspto.gov] I can find for MICROSOFT WINDOWS has a 2(f) claim, meaning that WINDOWS was registered on the basis of acquired distinctiveness. Essentially that in the abstract, the element WINDOWS was not registrable and thus subject to disclaimer- the 2(f) claim cures that by asserting that it is distinctive in the marketplace in spite of that. It only requires that the term be in "substantially exclusive and continuous use" for the previous 5 years, and such an assertion by Microsoft is sufficient to forgo any further PTO analysis of the issue. The registration also includes a logo.

            Anyway, I have to bet that actual registration rights are just perhipheral to this litigation anyway- I'm sure it would impress a judge/jury more if MS were able to trot out some unrestricted trademark registration from the mid-80's, but it doesn't seem strictly necessary to show likelihood of confusion.
  • by JanneM ( 7445 ) on Wednesday February 11, 2004 @08:57AM (#8247588) Homepage
    ...it is a much easier issue. If it's a non-english speaking country, there is nothing generic about the words "Windows", "Word" and so on. Lindows is pretty clearly infringing in those cases.

    Choosing a name that will get you on the losing side of a trademark disupte, guaranteed, strikes me as a pretty shortsighted thing to do.

    • However, in the United States of America, Microsoft has never been able to trademark the term 'Windows' in any fashion.

      Pull out your Windows CD's (You have real CD's right?), There's a TM symbol next to 'Microsoft' but there is not and never has been one next to 'Windows.'

      I used to be on MS's side in this case, but the idea of a 'windowing' operating system pre-dates Windows by several years. We all saw that documentary on TNT a few years back... MS and Apple both stole the idea of a windowing operati
    • by 91degrees ( 207121 ) on Wednesday February 11, 2004 @09:02AM (#8247622) Journal
      That depends. What do they call windows (i.e. the actual boxes with titlebars) in other countries? Do they translate the word "window" into their own language, or simply use the English word?
      • by JanneM ( 7445 ) on Wednesday February 11, 2004 @09:11AM (#8247666) Homepage
        I can't speak for other languages, but in Sweden, at least, we translate it. Where you have a "window" with a "button", we have a "fonster" with a "knapp".

        So, yes, "Windows" really is a non-word, and it rightly becomes a big, relevant problem for Lindows.

        To turn it around, assume a product (a window cleaning agent, say) from Sweden named, exotically, "Fonster". Then some other company releases _their window cleaning compound and names it "Fonsder". Would it not be reasonable - and quite easy - for an american court to find that "Fonsder" was unacceptably close to "Fonster" and that they did attempt to ride on the coattails of the first company's brand penetration?
        • I can't speak for other languages, but in Sweden, at least, we translate it. Where you have a "window" with a "button", we have a "fonster" with a "knapp".

          I always wondered how Shawn Fanning came up with the name for that app!
        • Where you have a "window" with a "button", we have a "fonster" with a "knapp". So, yes, "Windows" really is a non-word, and it rightly becomes a big, relevant problem for Lindows.
          So, solved then. All they have to do is rename the product 'Lonsters' in Sweden, 'Lensters' in Holland, 'Lenetres' in France, 'Lanelas' in Portugal, ...
    • by blorg ( 726186 ) on Wednesday February 11, 2004 @09:03AM (#8247628)
      I wouldn't say it's that simple. English was and is the prevailing tech language, that would be used for computing terms in other countries (witness France's efforts to replace the use of the term "e-mail" with "courriel" [wired.com] and then compare popularity on Google.fr [google.fr].

      And 'windows' was definately a generic computing term before MS took it for the name of their product.

    • by Shisha ( 145964 ) on Wednesday February 11, 2004 @09:12AM (#8247677) Homepage
      Not _necessarily_, the term "X windows" has been around for a while, Xerox engineers have probably been calling that GUI element a window, not to mention Apple. Since technical terms are often not translated it still remains a generic term.

      It's bit like trying to trademark the word "Petrol" for a combustion engine based car. It's simple a common word when used in certain context.

      • It's bit like trying to trademark the word "Petrol" for a combustion engine based car.

        Or even as a brand of fuel for spark-ignition engines.

        It's simple a common word when used in certain context.

        But it is acceptable to trademark words which are used outside their usual context. e.g. "Amazon" as a bookseller, which has nothing to do with either South American rivers or Eurasian women warriors.
    • Who is going to use the term "word" next, I wonder?

      But, you may be right about non english countries, although if Windoze is called by some local translation, Lindows would not resemble that translation and so would not infringe. It is also likely that the local term for windows has been used generically. I don't know if M$ name their product in the local language or not, if they do it will only cost them more in legal fees. But, if they have any sense, they will capitulate when they have lost one or two ma

    • Not likely (Score:3, Insightful)

      by werdna ( 39029 )
      Its a great idea, but the law in most countries that a mark in a foreign language is still not registrable if it is merely descriptive (without acquired distinction) or generic, AS TRANSLATED.
    • If it's a non-english speaking country, there is nothing generic about the words "Windows", "Word" and so on. Lindows is pretty clearly infringing in those cases. Choosing a name that will get you on the losing side of a trademark disupte, guaranteed, strikes me as a pretty shortsighted thing to do.

      I don't know about that. I can see why Microsoft would be upset by the name, but from both the consumer and Lindows' points of view, it seems like a brilliant strategy. I mean the consumer knows what "Windows"

  • by supersam ( 466783 ) on Wednesday February 11, 2004 @08:59AM (#8247604) Homepage
    'Windows' could be a trademark... 'windows' cannot!!
  • Meanwhile (Score:5, Insightful)

    by 91degrees ( 207121 ) on Wednesday February 11, 2004 @09:00AM (#8247607) Journal
    Michael Robertson is delighted to get his product's name splashed across newspapers.

    Regardless of the merits of the case, even if the guy loses, he probably wins.
  • by jotaeleemeese ( 303437 ) on Wednesday February 11, 2004 @09:01AM (#8247616) Homepage Journal
    in English speaking countries MS has not got a chance in hell to win this one.

    Window is a generic term in IT industry before they even came with the idea to embrace and extend it from Apple and Xerox.

    In non English speaking countries is a different matter, since the generic term for a window in an IT context(ventana in Spanish for example) is clearly different from the name of the product.

    So to enforce the trademark elsewhere but the US, UK, Canada, Australia, Singapore, etc sounds like a hollow victory.

    MS: just suck it up and get on with it!
    • So to enforce the trademark elsewhere but the US, UK, Canada, Australia, Singapore, etc sounds like a hollow victory.

      A few more places than that. Given that English is the second most common language on the planet...
    • So what do you do with GMC?
      Would a company making engines calling itself Jeneral Motors Corporation be infringing on GMC?

      The phrase "general motors" existed before the company. Note the brand difference between General Motors and General Electric... These names sound so generic that it's obvious that they do not infringe on each other's brand.

      This is a TOUGH case. Nobody reasonable looking at the name General Electric thinks of the car company. Yet EVERYONE reasonable looking at Lindows thinks of the simi
  • by LibrePensador ( 668335 ) on Wednesday February 11, 2004 @09:02AM (#8247619) Journal
    The ruling can be accessed through Lindows's page, right here [lindows.com]

    Read the yahoo article and the one posted at Seattlepi.com and the (mal)practices of our media shine through in the reporting of this ruling.
  • by Anonymous Coward on Wednesday February 11, 2004 @09:03AM (#8247629)
    IIRC, when MS first put out "Windows" they wanted that trademarked, but as it was judged too generic the actual name ended up being "Microsoft Windows". Or am I misremembering?
  • by Serious Simon ( 701084 ) on Wednesday February 11, 2004 @09:07AM (#8247648)
    So "Lindows" is not infringing because windows is a generic word, not because it is too similar to Windows. Then, even a marketing a product with Windows in its name would be permissible. Lindows Windows?
    • Absolutely. For example you have Microsoft Word which is a word processor from Microsoft and you have Scientific Word which is a totally unrelated LaTeX based word processor from MacKichan Software [mackichan.com]. Since "Word" is a generic name, both companies are equally entitled to use it in their product names. The fact that Microsoft is better known is irrelevant.
    • I don't see why not! Or even Linux Windows, (need Linus's permission of course as he owns the Linux trademark), or Red Hat Windows, SuSE Windows, Xandros Windows, Debian Windows, IBM Windows, SCO Windows......

      No, there must be a law somewhere against the last one!

  • Appeals? (Score:4, Funny)

    by Call Me Black Cloud ( 616282 ) on Wednesday February 11, 2004 @09:07AM (#8247650)
    ...appealing issues in a trial that hasn't even happened.

    First, I thought you could only appeal rulings. Second, if the submitter actually mean "rulings" instead of "issues", how would this be possible? "Your honor, I'd like to appeal the decision you haven't made yet in the case that hasn't been heard..." Third, there's a trial? Who's on trial for what? I thought trials were for criminial cases.

    This is all so confusing...I guess it's time for me to get a law degree [affordabledegrees.com]
    • You can appeal things that happen before the actual trial (and "trial" covers civil and criminal cases); happens all the time.
    • Re:Appeals? (Score:3, Informative)

      Second, if the submitter actually mean "rulings" instead of "issues", how would this be possible?

      The ruling in question is that a jury will only be able to consider the pre-1985 meaning of the word "windows", and not it's current use as an operating system brand name. Microsoft want the eventual trial to be held using the current use of the word - which would automatically imply that it had the right to trademark the word in the first place.

      In essence, Lindows defense appears to be resting on the idea
  • An analogy would be Microsoft taking the word 'like' to name a product.

    So we have the Microsoft Like OS, true and proud.

    Then comes along the bike, or the Mike OS.

    Maybe in the future the courts will make me ride a widget and use an alternative widget OS. Anybody else see this as idiotic in america?

  • Yeah, I think everybody should be able to name their products however they want to.

    I just love to Edit my Pictures with my Fotoshop, use GRUE/Rinux on my Server and running the dieSQL Database...


    Yes, of course Horray for Linux(TM), but would you appreciate it if Microsoft would release some tools with Longhorn called alike the free alternatives ?
    Although this is hard to imagine - most OpenSource Desktop-tools arent widespread enough to get mixed up for home users - and they arent widespread enought
  • generic (Score:5, Insightful)

    by Corporal Tunnel ( 642897 ) on Wednesday February 11, 2004 @09:11AM (#8247670)
    a term that is generic cannot be made ungeneric.

    Sure it can. Apple, Gateway, Dell, etc...

  • by blorg ( 726186 ) on Wednesday February 11, 2004 @09:12AM (#8247676)
    From the Lindows press release: "The decision means that the March 1, 2004 trial will not go forward. Instead, Microsoft will appeal the Court's ruling to the United States Court of Appeals for the Ninth Circuit."

    It would be simply *impossible* for MS to prevail if the case went ahead on this basis. No-one disputes that 'windows' was a generic computing term before the introduction of MS Windows. The judge allowed them an option of appealing this ruling, and they are doing so. They would be mad not to.

    Oh - and the Seattle Post-Intelligencer article reports the facts and is perfectly fair and balanced to both sides. It might have been an idea to put this link first, rather than suggesting that it is biased.

  • Genericness (Score:5, Insightful)

    by angusr ( 718699 ) on Wednesday February 11, 2004 @09:13AM (#8247689)
    the jury must only consider the genericness of the term 'windows' prior to the introduction of Microsoft's products, and that a term that is generic cannot be made ungeneric

    If that's the instructions given to the jury, then they can't possibly find for Microsoft.

    The term "windows" - ignoring the obvious hole-in-a-wall - has been used since the WIMP interface (Windows, Icons, Menus, Pointer) was developed at Xerox PARC in the 70s (commercially available in 1981). Later developments of that interface - the Apple Lisa in January 1983, Project Athena (which generated the first versons of X) was set up in May 1983, and based X upon the preexisting W window system, plus others - were around before Microsoft Windows was.

    Microsoft Windows 1.0 was announced in November 1983, and released in 1985. At a rough count I reckon that there were at least 3 or 4 prior windowing systems using the phrase "windows" generically prior to that - and specifically using it in the same sense as Microsoft use it, not in any of the other ways that the term "windows" can be used generically.

    Moral of the story; when naming products, make words up... you listening, Firefox?

    • Re:Genericness (Score:2, Interesting)

      by Knight55 ( 742458 )
      Yes, obviously many systems named windows before Microsoft bit into it, make me wonder if Microsoft is getting after Lindows for the same thing they did 20+ years ago.

      Additionally, Microsoft wants the Jury to consider present day only when the Lindows team wants pre-1985. Looks like a toughy there. Lindows -1 because they tampered with it in the present but Microsoft -1 because just because the name is synanymous with them doesn't mean they own it.

  • by Tarwn ( 458323 )
    I have yet to see anything that changes my mind on this one.

    Lindows was named Lindows purely to generate sales from the popularity/notoriety of Windows. Yes, the word windows can be considered an everyday word, but why does that matter? It is obvious that the product in question chose to mimic another products name, not a popular GUI format or home decoration. If that were the case they would have named it something like Toolbar or Chimney.

    If Lindows actually wins infringement lawsuits then maybe it will
    • by NSash ( 711724 ) on Wednesday February 11, 2004 @09:27AM (#8247767) Journal
      Lindows was named Lindows purely to generate sales from the popularity/notoriety of Windows. Yes, the word windows can be considered an everyday word, but why does that matter? It is obvious that the product in question chose to mimic another products name, not a popular GUI format or home decoration. If that were the case they would have named it something like Toolbar or Chimney.


      I think you're confused about how trademark infringement works. A trademark is infringed if and only if it can be shown that the name would cause a consumer to confuse the two products. Just having a name that's reminiscent of the name of another company's product isn't automatically an infringement. (That's why if there's a car called a Mercury, and I want to call my software suite Mercury, I can do so: there's no risk that someone will mistakenly believe that my software suite is a product of the car company.) There is no way someone would confuse "Lindows" for "Microsoft Windows."

      • by Tarwn ( 458323 ) on Wednesday February 11, 2004 @10:00AM (#8248049) Homepage
        Actually, I think I do know a couple thinks about trademark infringement, at least in the US, even though IANAL.

        From what I remember about US trademark infringment laws you have to show:
        1) Similarity of two marks, either in sound, appearance, or underlying meaning
        - Lindows, Windows - I see phonetic similarities, they appear similar. No underlying meaning because Lindows doesn't mean anything, but 2 out of 3 is still one more than necessary

        2) Strength of plaintifs mark
        - How big is name recognition on "Windows"?

        3) Similarity between goods and services:
        - while a car and a software suite are incredibly dissimilar, the same is not true about two OS packages, or desktop environments, which ever you want to classify these as

        4) Intent:
        - Did Lindows intend for their product name to be similar to Windows...? This one seems fairly obvious

        5) Confusion: has there been any confusion by the customers over these two products:
        - this is the only one I can't verify as I haven't looked to deeply into the proceedings. But then, there are customers that buy their computers with the Internet inside, i wouldn't be surprised if some bought Lindows machines either thinking that Windows was mispelled or not thinking at all

        A couple things that are optionally included are things like relative distance on shelves of said products, the degree of care excerised by the consumer, and the likelihood of expansion of the product lines.

        Now, as far as whether Windows could be considered a trademark or not, I originally thought that this was the only weakness in the issue, but after a little research i found some interesting stuff:
        A word that is merely descriptive is not a mark and therefore cannot be Trademarked. However, if a descriptive word becomes distinctive it can attain a secondary meaning. meaning that although the mark is descriptive, it has customer recognition value for a single product/etc. The way a descriptive word gains this second level of meaning is tyhrough advertising and long use.

        So in order to remove the argument that "Windows" cannot be considered a trademark, all MS should have to do is prove that it has name recognition in the general public. Once that is proven then the mark is distinctive rather than just descriptive, which falls into the realm of what is allowed to be trademarked.

        On a side note, the same is true for using names. Until a name has the distinctive second meaning it cannot be trademarked. Thus if Ford were to have started making cars yesterday, there name would not be able to be Trademarked until they had received an adequate amount of name recognition from customers, at which point it gains that second level of meaning and could then be considered to be distinctive and trademarked.

        Note: There are some grammatically imprecise sentances in there because I was trying not to use my new word "Trademarkability" :P
  • Home turf? (Score:5, Insightful)

    by Call Me Black Cloud ( 616282 ) on Wednesday February 11, 2004 @09:14AM (#8247695)
    Of course, in Microsoft's home turf, the story has a different spin.

    Let me see if I understand this. You're comparing an article in the Seattle PI with a Lindows press release and you claim the PI is the biased one? I don't think you understand the purpose of a press release. Of the 3 elements here, you (submitter), PI article, Lindows press release, 2 of them appear biased. 1 of them is not the PI article.
  • by Call Me Black Cloud ( 616282 ) on Wednesday February 11, 2004 @09:21AM (#8247732)
    ...it doesn't change the fact the name Lindows was chosen to benefit from the ubiquity of MS Windows. If the question of windows being a generic term wasn't a factor Lindows wouldn't have a leg to stand on. The company is only trying to increase market share by riding on the coattails of Windows' well-known name.
  • by BassKnight ( 525986 ) on Wednesday February 11, 2004 @09:23AM (#8247745)
    This case looks just like Microsoft trying to step over its competitors with a worthless excuse. I don't remember Microsoft sueing Sun for the OpenWindows desktop that comes with Solaris.
  • surely (Score:2, Funny)

    by Disc2 ( 720412 )
    can they not claim the "Lin" comes from LINux, only leaving the suffix "dows" which MS can surely not claim trademark violation of :D
  • by Simulant ( 528590 ) on Wednesday February 11, 2004 @09:34AM (#8247822) Journal

    Any chance they could win by saying Lindows is a parody of Windows?
  • Common sense (Score:5, Insightful)

    by darnok ( 650458 ) on Wednesday February 11, 2004 @09:38AM (#8247850)
    Common sense says that the underlying problem is that a trademark on "Windows" should never have been awarded to Microsoft in the first place. Lots of stupidity can be traced back to that decision.

    It's not like the term "Windows" didn't have a generic use prior to it being turned into a trademark, nor can anyone sensibly claim that Microsoft was the first to use "windows" as a description for a way of displaying multiple applications on a computer screen simultaneously. Xerox PARC was using the term, and had a demonstrable windowing system, several years prior to MS first applying for the trademark.

    As an aside, it's always struck me as strange that MS successfully patented "Windows", but no-one patented "mouse".

    A sensible legal system would throw out the original "Windows" trademark as being invalid.
  • BUT, in the case of microsoft it is used to describe a product... just as McDonalds & Ford are a generic names used to trademark food and auto items respectivly...

  • by jarran ( 91204 ) on Wednesday February 11, 2004 @09:49AM (#8247939)
    Much as I hate to admit it, maybe MS have a point. Think about why Lindows chose the name they did? Why pick a name that is very close to "Windows"? Why not pick a name which associated Lindows with Linux or UNIX etc, which their OS is technically much closer to.

    The answer is that they were purposely avoiding those terms because they scare computer users. They picked the name Lindows because they new that users would associate it with Windows. So the user sees three boxes on ths shelf. Windows, Lindows, and Redhat. To the user, Redhat is scary and unfamiliar, they've probably never heard of it, or if they have, it's been in association with other scary unfamiliar things like Linux and UNIX. Windows is what they know, it's familiar and safe. Lindows, on the other hand, may not be familiar to them, but they might think they can safely assume that "Lindows" must be much closer to Windows than "Linux" is.

    So clearly, Lindows are attempting to market their product by creating an association with another strong brand. "By Lindows because it's like Windows" is the unsaid message.

    Users won't be confused between Lindows and Windows, but they will be confused into thinking Lindows is like Windows.

    IANAL, so I don't know if that's actually illegal, but to me, it seems rather dishonest - as their product isn't in any way associated with Windows. And it was clearly intentional. They presumably would never have called their OS "Lindows" if it wasn't the case that Windows has a near monopoly on the desktop.

    Of course, I still hope that Microsoft lose. They are by far the greater evil.
    • Blah,blah, blah. (Score:3, Informative)

      Lindows is on its right to choose a generic term in the IT industry (windows) to name their product.

      If that happens to coincide with another company's product name, which is not trademarkable because they are using a generic name, then it is not theor fault, but the fault of the first company to fail to choose a name that was defensible under trademark law.

      You are completely off base.
  • by sepluv ( 641107 ) <[blakesley] [at] [gmail.com]> on Wednesday February 11, 2004 @09:53AM (#8247994)
    It is very simple. You cannot trademark a generic term. M$'s own dictionary describes "windows" as a generic term for OS windowing systems. In my country (UK), M$ have to specify a generic category which they want to protect their trademark for. They have specified it as windows software for microcomputers. Windows has been used since the 1950's in computing to represent portions of a display. Micro and soft are common abbreviations listed in some dictionaries. Therefore they themselves know that "Micro", "Soft" and "Windows" are clearly generic terms and have no leg to stand on in any attempt to protect either the mark "Windows" or "Microsoft".
  • by Uninvited Guest ( 237316 ) on Wednesday February 11, 2004 @10:31AM (#8248343)
    Do you suppose this ruling will impact other products using words that were generic before the product was named? If so, Microsoft has plenty to worry about. Look at their flagship products:
    Office
    Word
    Excel
    Access
    SQL Server
    Outlook

    If "Windows" can't be protected on the basis that "windows" was a generic word before it was trademarked, what will protect the other products? I'm not meaning to pick on just Microsoft here; there are lots of software products that use generic word names. Will all of them have to be renamed?
    • by saddino ( 183491 ) on Wednesday February 11, 2004 @10:48AM (#8248567)
      You're confusing "generic" with "descriptive." Generic terms make great trademarks (Scope, Crest, Tide, etc.). The problem is trademarks that are generic and descriptive of the product or service.

      "Office" is certainly descriptive, and thus, you might notice that Microsoft is not wasting it's time going after "StarOffice" or "OpenOffice." The same is true for SQL Server.

      "Word" is iffy, and a legal challenge would be interesting -- in many ways it is similar to "Windows."

      The other product names you listed (Excel, Access, etc.) are good trademarks. You will never see a "Oracle Access" email program.
  • Get over it. (Score:3, Interesting)

    by siphoncolder ( 533004 ) on Wednesday February 11, 2004 @10:41AM (#8248482) Homepage

    Lindows is quite obviously an attempt to use the popularity of the "Windows" brand name to promote their operating system. There's really no other reason. XWindows is a GUI shell, not an entire OS - the idea that that's the same as Lindows doesn't fly, since Lindows is being billed as a brand-name operating system.

    If this was a farce, a parody, that'd be fine. But it's also obviously not that.

    The fact that Microsoft is supposedly so bad does nothing to make this more acceptable or right. It's wrong. MS already got what it deserved - give Lindows what it deserves.

    A really hard rollicking.

    • Re:Get over it. (Score:3, Insightful)

      by saddino ( 183491 )
      Lindows is quite obviously an attempt to use the popularity of the "Windows" brand name to promote their operating system. There's really no other reason.

      Actually there is a reason: Purposely name the product Lindows to force MS to bring a suit to defend its trademark.

      These guys aren't naive (their lawyers would have fainted if they had seriously considered using "Lindows" without understanding the implications of doing so). Believe me, they knew exactly what was going to happen. Thus, the only reason
  • by utexaspunk ( 527541 ) on Wednesday February 11, 2004 @11:15AM (#8248847)
    Take the free Xbox and run! [cnn.com]

    your friend,

    Mike Rowe
  • by bonkedproducer ( 715249 ) <paul@NoSPaM.paulcouture.com> on Wednesday February 11, 2004 @11:19AM (#8248887) Homepage Journal
    Someone needs to Show Microsoft this:
    • W
    • W
    • L
    • W

    "One of these things is not like the others... one of these things doesn't belong... one of these things......."

  • by Anonymous Coward on Wednesday February 11, 2004 @11:53AM (#8249248)
    Let me get this straight:

    Microsoft files a lawsuit against Lindows.com to shut them down before they release a product.

    The Judge rules against them.

    They ask the Judge again to shutdown Lindows.com.

    The Judge rules against them and includes language suggesting that windows is a generic word.

    Two years go by with lots of legal wrangling, but there's going to be a trial where Lindows.com asks to *invalidate* their windows trademark which MS claims to have spent 1.2B on. This means anyone can use 'windows' ANYWAY they want if they lose.

    Now the Judge says that the time period to look at to determine if windows is generic is PRIOR to MS product AND if it's generic then (which it was since that's why MS chose the name) it's generic now meaning their trademark certificate can be gently placed in the shredder. No valid trademark = no trademark infringement. Lindows.com wins the case AND invalidates MS's trademark!

    Uh... somebody has to remind me why the hell MS brought this case and why they are continuing to pursue it! This is like one of those runaway company projects which once get started people can't stop because it builds up its own inertia.

    Microsoft must have the most incompetent legal advise. And did I mention that all their antics just make more publicity for Lindows.com who is appearing more and more like a real threat everyday?

    This is why big companies invariably fall to small challengers. Because they do stupid things.
    • They should definitely fire their attorneys. The Lindows site has many of the filings. In one of the filings, MS made an argument that was later shot down by the judge. Lindows pointed that out. What does MS do in response? They say the same thing over again! MS is getting completely incompetent advice and should hire new counsel, at least for the appeal.
  • In Norway (Score:3, Informative)

    by Anonymous Coward on Wednesday February 11, 2004 @12:30PM (#8249614)
    ..we have this easy to understand trademark law, which says that you cannot name something such that it will create confusion within the market you are entering.

    So it's very OK to call your loudspeaker design firm Hydro (Hydro is agriculture/aluminium/etc/etc), but it's not OK to call your upstart ISP Telenord (there is one called Telnor).

    I say Microsoft really has a case. Lindows enters exactly the same market as Windows. It doesn't really matter if it's in the US or elsewhere, Windows is something my mother associates with buttons, menus and blinking cursors. It would probably be OK to call the Firm Lindows, but the product needs a new name.

VMS must die!

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