Microsoft Starts Legal Fight Over Lindows Name

actappan writes: "Whether or not Lindows is real, this article on CNET News.com indicates that Microsoft intends to sue them into oblivion. Looks like supression remains the best way to promote innovation." cyberlawyer adds: "Some of you may remember that MS originally had great difficulty obtaining a trademark for the generic term 'Windows' but was eventually able to pay off those who had filed letters of protest to the granting of the mark including Sun, Oracle, and Borland. As a trademark lawyer I (unhappily) have to admit that Lindows probably has a weak case. Of course it's never too late to bring a cancellation action based on genericide ;-)" CodeWheeney contributes a link to coverage at Yahoo, too.

Innovation

Looks like supression remains the best way to promote innovation.

<tongue-in-cheek>
There's nothing quite as innovative as an operating system with the sole goal of reimplementing APIs from other operating systems until it can run their binaries. :)
</tongue-in-cheek>

Re:Innovation

There's nothing quite as innovative as an operating system with the sole goal of reimplementing APIs from other operating systems until it can run their binaries. :)

Let's see, first the guy founds MP3.com despite the fact he had nothing at all to do with the definition of the MP3 spec. Then they get into an amazin mess after they launch their BeamIT! service despite the obvious legal problems. Then they agree to a multi-million dollar settlement only to realize that they paid off the worng people, the ones who own the mechanical rights and not the performance performance rights...

This is not the type of person I would exactly want to tie my colours to...

Microsoft appear to me to have a very good case. The point is that they were the first company to come up with an Operating System called Windows. X11 is not an O/S. Lindows is trying to trade on the reputation that Microsoft has built up.

Beyond that however the guy is attempting to trade on the Open Source concept while developing something that will be closed source.

It all sounds so much like MP3, the business model is entirely clueless. Who do they expect to pay money for a sad copy of a Windows clone? It will always be at least one release behind the Microsoft article. Nobody is going to test software on an O/S with 0.1% market share or less. Windows is not just a set of APIs, it is also a kernel that has completely different semantics to the Linux kernel. The best you can hope for is something that works as well as the Windows NT POSIX mode - which is to say not well at all really.

It also sounds like MP3 in that the idea is to somehow make money by lowering a hook loaded with bait into a trendy scene where the basic premise is not to pay for anything. I suspect that the markets are not as happy with companies whose 'business plan' is less important to them than their 'exit strategy'.

To me it's fair

The name is not "Windows" but "Lindows" which gives the impression that it's not Windows but somehow connected to Windows.

Therefore I see no problem in the name, if Microsoft were truly believers of free competition and innovation they'd leave this alone. The only time to complain is if they try and con people into thinking this project has a connection to Microsoft.

I think windows should be a generic term anyway, whether I'm running Windows, X or BeOS I call those boxes on the screen 'windows', therefore any derivatives of the name should be allowed I think.

Re:To me it's fair

The name is not "Windows" but "Lindows" which gives the impression that it's not Windows but somehow connected to Windows.

That's exactly the point behind the legislation, and I'll have to grudgingly agree with Microsoft on this thing. "Windows" is such a ubiquitous name, and "Lindows" is so phonetically close, that the only thing the Lindows people could be doing with a name like that is riding on their coattails, so to speak. (Whether or not they meant to is not an issue.) This lawsuit is exactly what trademark law is for.

Another issue is that Microsoft doesn't want the tech support calls for Lindows (and you know it would happen). Yet another is that people would automatically associate Windows with Lindows, and that's not something Microsoft wants either. Trademark law is also meant to protect against these two problems.

Whether or not "Windows" is a strong enough mark is a completely different issue. They've got the trademark, and, by law, they can protect it.

Re:To me it's fair

They should change the name to "Bill Gates is a big fat idiot presents: Lindows" so that people won't get confused. You know, just to be sure.

No really, maybe not that, but I think that this lawsuit is the best kind of publicity they could possibly get. They should capitalize on it by changing the name to something subtle that jabs at microsoft but still makes clear what it does. If only Sun was behind it- they could call it "Sunroof".

Howzabout "windshield"? "Glass Joe" (Include MAME with punchout standard :))

Wait, I've got it. "MirrorGlass" Have a picture of a mirror on the box, with the reflection of a window tinted with microsoft colors in the background, and a penguin waving in. How cute is that?

Mr. Robertson, this idea is mine but you may take it and run with it. Hell, I'll sign papers and even let you take it proprietary. I'd love to see that image on a shelf and have some clerk at Compusa have to explain what it means to a customer. "Well, that's tux the penguin, and he's looking through some windows at you, but they're not *microsoft* windows, because microsoft sued the company, so they're just regular old windows. Well, not really since Windows(TM) is a registered trademark of Microsoft. But anyway, it runs programs built for windows, even though it's not Windows(TM)"

alternate name?

How about calling it "Defenestration"?

Nah, too subtle.

--LP

Re:To me it's fair

allright then I hereby apply for the folloing *indows variants;
Aintdows - no this is clearly not m$
Bindows - all your /bin are belong...
Dindows - gungas client
Eindows - scary physics edition
Findows - Sharks gotta have an OS too
Gindows - Shaken, stirred...
Hindows - new religious sect
Jindows - straight up moonshine version 1.0
Kindows - the deep south hillbilly OS
Lindows - err.. oops thats taken
Mindows - Ho Chi's apple based abicus
Nindows - Trent Reznor enhanced edition
Oindows - complete with matzah balls
Pindows - an OS so simple your PHB could use
Qindows - soo bloated you need five beowulf clusters just to boot
Rimdows - the ass lickers edition
Sindows - the ultimate pr0n OS(aka Pr0ndows)
Tindows - the only os without a shrinkrap
Unindows - what you really want to rm -rf
Vindows - aint this one taken too?
W.. ahh f them
Xindows ...hrm...
Yindows - Fengshue cosmic edition
Zindows - a narcoleptic edition (formerly known as Win95)

yuk yuk...

Lawsuits.

Ah, perfect. Don't change the name; just slap on the Aqua interface and ship it. This is the legal equivalent of a honeypot.

--saint

Torvalds sueing next?

Linus has just as good a case... Lindows starts with Lin, which is over half of the name Linux.

If not Lindows..

How about Windex?

Oh, wait...damn...

Re:Anyone remember X-Windows?

Maybe they should call it 'L'. People can then informally call it the L-windows system but in court they can just turn round and say "no yer honour, it's called L, not L-windows, we can't control what everyone else calls it".

Microsoft's Claim is Legit (IAAL)

I've seen a lot of "IANAL"s discussing issues like this, but, for once, IAAL. (maybe IAAAL? I am actually a lawyer ;).

Anyways, Microsoft's claim is entirely legitimate. 'Lindows' is in the same "industry" as 'Windows', and is intentionally abusing the popularity of Windows for its own benefit.

This is the same as coming up with an electronics company called Panasoanic -- there is the potential for legitimate consumer confusion.

I know it's unpopular to side with Microsoft on something, but for once they're in the right here.

As a copyright/trademark lawyer, I'm hoping the courts make the right decision and force Lindows into a name change.

- Dave Brennins

Re:Microsoft's Claim is Legit (IAAL)

Very well said. They have indeed spend many dollars in marketing that name and for someone to come in and piggyback on their name is, well, not fair. Let a database competitor that only run on Linux to come up with the name Loracle and see what Oracle does. MS has a solid case and I have no doubt they will prevail.

The guys there should have picked something like Winux. After all, it's running windows on linux. Not the other way round.

zoot-2.2.20-SMP

Re:Microsoft's Claim is Legit (IAAL)

I'm hoping the courts make the right decision and force Lindows into a name change.

The right decision would be to invalidate Microsoft's Windows trademark because it's a common word.

Panasonic, on the other hand, is not a common word, so that's a pretty stupid comparison, isn't it?

Re:Microsoft's Claim is Legit (IAAL)

The right decision would be to invalidate Microsoft's Windows trademark because it's a common word.

Well... Apple is a pretty common word too, but i don't see that one being invalidated either.

No, they should rename it to "I Can't Believe It's Not Windows!"

Frankly, this is silly.

Calling a windowed operating system "Windows" is like naming an automobile "Wheels." It's a generic descriptor, and managing to enforce it as a trademark suggests underhanded legal tactics (in particular scare tactics) against small challengers and generous settlements against large challengers. Either that, or clueless judges, or both.

Remember MS's defense over the Internet Explorer trademark suit? "Internet Explorer" is too general and vague to be a trademark. "Windows" is just the same. Ditto for "Office," "Word," "Access," "Visual BASIC," and any number of similar names used by MS (I have no idea which ones they claim as trademarks by themselves). You seem to be completely ignoring this aspect.

Now, if they were making something that sounded confusingly like "Microsoft Windows," MS would have an airtight case. However, MS should never have had a hope of holding "Windows" alone as a trademark, and that they do is a serious failure of the legal process.

Now, as a lawyer, you are certainly better qualified than I am to predict failures of the legal process; in some areas, I'm sure that common failures are more imporant than the letter of the law. I can't argue with you if you claim that MS will win this, but it is absurd for you to claim that they should win, that a court upholding their exclusive right within the industry to use a standard industry term as a name for the most visible component of their system would be fair and proper.

There should be no problem with having "IBM Windows," "Sun Windows," etc. let alone "Lindows."

Now, this last bit has nothing to do with current law, to the best of my knowledge, but I remember hearing a principle of trademarks that I really wish was law: all linguistic trademarks should consist of a proper noun followed by a descriptive term. Nobody should ever own marketing catchphrases, fictional character names, or descriptive terms as trademarks by themselves. (I don't recall the source)

PC Mag hit it on the head

according to a quote from a review on the lindows site [lindows.com].

It's software that combines Linux and Windows without violating any trademark or copyright--although I bet Microsoft will sue at some point.

Guess they were right!

How you can fight back.

I say that we fight Microsoft by refering to all OS's as 'Windows.'

Hopefully this will cause Microsoft to lose the trademark name 'Windows' because it will become generic from over usage.

Who would be confused?

"If they're alleging that people are going to be confusing Microsoft Corp. with Lindows.com, I think there's zero potential of that happening," he said. "If people are confused, just remember that we're not the convicted monopolist."

Murchinson said Microsoft considered legal action a last resort.


I'm still laughing!

On Murchinson's comment, it can't be a 'last' resort because they don't stop. When you play monopoly do you just plain give up?

I don't think suing them will be the last step - it's their first. They can sue easily, they have lawyers. It's like a Soviet Tank rush in Red Alert 2.. hit your enemy before they can build anything, then they can't get back at you; kill slowly from there.

Windows has become a product of it's own. Not an 'os' anymore. Instead of changing people to linux, change their flavor of windows.

heh. "Any press is good press"

I think the Lindows people /knew/ from the beginning that MS would spend /their money/ to give the Lindows a little industry spotlight ;-) Kudos guys.

Re:idiots

Okay, so that means I'm not allowed to make any operating system component with a name ending in "indows"? This is almost as bad as McDonalds trademarking the "Mc" prefix. AAARRRRGGH!

No, this is more analagous to you opening up a fast-food hamburger chain called "McRonald's" with a clown named Donald McRonald for a mascot and a big golden "R" as your logo.

"indows" constitutes nearly every letter and sound in "[WL]indows", and the product is ridiculously similar by intent.

"I'm a completely original character, like Monald Muck, or Ricky Rouse!"

Even if Windows is a TM; It is Generic

it is not the final determiner in court. Even a well known mark may become a generic term. For instance, Bayer lost the mark to "asprin." "Kleenex" became a generic term. Microsoft can show their trademark registeration form until they are blow in the face, but, to their disadvantage, the more widely used the term becomes, the more likely Microsoft will lose the mark.

Microsoft dug their own hole right off the bat. A good test: "What is [it] called?" If the mark is [it] then it is likely to become a generic term. Trademark attorneys have done a great job applying this test by combining additional terms to a potentially generic mark. For instance, perhaps Apple wanted to call their notebooks, "Books." Instead, they merely attached the "i" and the mark became unique.

Windows? Wthelse are these things to be called? That's generic. And Microsoft has lost any unique attributes to the mark.

List of Generic Marks and Depends on Consumer

Conducting additional research on how Microsoft's mark for "Windows" may be generic, I ran across a list of "Trademarks That Have Become Generic. [mycounsel.com]" The list includes terms "held by the Trademark Office or a court to be incapable of serving as trademarks for the goods and services they named because they had become, in the minds of consumers, generic terms for those products or services."

So, the test would not be whether Microsoft or a particular judge considers that a mark is a generic term, but if the mark becomes a generic term in the minds of consumers. Perhaps a party could present evidence such as surveys or the online and published usage of a term in a generic sense as a means to describe the thing?