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Microsoft Starts Legal Fight Over Lindows Name 670

Posted by timothy
from the their-valuable-trademark dept.
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.
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Microsoft Starts Legal Fight Over Lindows Name

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  • To me it's fair (Score:3, Insightful)

    by linuxci (3530) on Thursday December 20, 2001 @10:11PM (#2735496)
    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.
  • by jmd! (111669) <.jmd. .at. .pobox.com.> on Thursday December 20, 2001 @10:12PM (#2735499) Homepage
    Linus has just as good a case... Lindows starts with Lin, which is over half of the name Linux.
  • by Anonymous Coward on Thursday December 20, 2001 @10:19PM (#2735530)
    Yea sure, let's see, micro-soft, what an original name (back 20 years ago, micro processors and software words were commonly used by computer people a lot), as far as naming a product "windows" when the name was used in computer science a lot, well, that's also original too, now, let's see, oh yes, what about how microsoft stole the look and feel of apples mac and won a court battle concerning copying another product, okay, so it's year 2001, and microsoft has the nerve to go after lindows, very hypocritical
  • by Anonymous Coward on Thursday December 20, 2001 @10:23PM (#2735555)
    Given the terrible track record of Windows for everything that an operating system is supposed to do, you'd think M$ would be trying to DISTANCE themselves from the Windows name.

    If coke started killing half the people who drank it, I doubt Coke (the company) would be branding it's soft drinks the same afterwards.

    The Windows brand name doesn't mean shit, and M$ knows it. Just like the name Microsoft (how many times have you seen the name in an XBox ad? Zero times for me). This is just about making sure no alternative exists to Windows for running Windows based apps, by litigating to death companies trying to accomplish this.
  • by ImaLamer (260199) <john.lamar@NOspAM.gmail.com> on Thursday December 20, 2001 @10:25PM (#2735559) Homepage Journal
    "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.
  • Re:To me it's fair (Score:2, Insightful)

    by Tickenest (544722) on Thursday December 20, 2001 @10:30PM (#2735580) Homepage Journal

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

    Isn't this the problem? Windows doesn't want its brand name to be associated with something that's not Microsoft, so naturally they're going to fight it.

    if Microsoft were truly believers of free competition and innovation they'd leave this alone

    Who besides Microsoft ever said they were such believers? (And have they ever even said this???)

    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

    That'd be nice, but I wouldn't expect it to happen anytime soon.

  • by dj28 (212815) on Thursday December 20, 2001 @10:32PM (#2735588)
    I doubt you are a lawyer. The domain 'davebrenninslaw.org' doesn't even exist. You might want to register it before you use it for your email address, don't you think?
  • by defunc (238921) on Thursday December 20, 2001 @10:34PM (#2735601)
    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

  • by enkidu (13673) on Thursday December 20, 2001 @10:37PM (#2735609) Homepage Journal
    IANAL but as a layman, saying that Panasoanic may cause confusion with Panasonic is reasonable. Saying that Lindows may cause confusion with Windows is pushing it. Should the makers of "Deer Hunter" have been able to sue "Beer Hunter"? By this kind of reasoning, Apple (OS X) should sue Microsoft for XP. Maybe a Kalahari bushman might be confused by Lindows vs. Windows, but I believe that there is no "reasonable potential for confusion." Especially if the packaging and design doesn't emulate the "look" of Windows(tm). I just checked, their web site doesn't emulate Microsoft's, although it's still pretty ugly. If Lindows has the pockets to fight this, I think they have a reasonable chance of defending themselves.

    If I were one of the founders, I would have considered that this would happen. This should be a planned for contingency. Of course, the planning would have to be in secret, 'cause an evidence of willful abuse would trigger punitive damages. Ain't the law grand?

    The alternative is to roll over and play dead, go out of business and sell their IP back to the founders who could start up again named "Winux".

  • Re:To me it's fair (Score:5, Insightful)

    by grammar fascist (239789) on Thursday December 20, 2001 @10:43PM (#2735639) Homepage
    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 (Score:2, Insightful)

    by linuxci (3530) on Thursday December 20, 2001 @10:46PM (#2735653)
    To me yes it would be fair.

    It's obvious they're not Microsoft with that name. The only problem I'd see is if people thought it was a typo.


    There were a few different DOS's when MS-DOS was popular, there was DR-DOS (then became Novell DOS and the Caldera OpenDOS) and PC-DOS. This didn't confuse people, so perhaps the full title of Lindows should have something prefixed to it so it's clear it's not MS.


    More MS bashing [monkeyontoast.com]

  • by grammar fascist (239789) on Thursday December 20, 2001 @10:47PM (#2735656) Homepage
    The soft "L" sound is so phonetically close to the soft "W" sound that you could mistake one for the other over the telephone.

    Besides, it doesn't matter. It's close enough that, by the "reasonable man" standard, it's nearly exact.
  • by idonotexist (450877) on Thursday December 20, 2001 @10:58PM (#2735688)
    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.
  • by IntelliTubbie (29947) on Thursday December 20, 2001 @11:21PM (#2735757)
    Of course we know that Lindows is not officially connected with Microsoft ... but remember, 99.9% of the public (and even most IT majors, according to that article from a couple days back) thinks that Linux is made by a company of the same name. Most people outside the Linux community would be confused into thinking that Lindows is either:
    a) Microsoft's version of Linux
    b) Linux for Microsoft Windows
    c) Microsoft Windows for Linux
    or some other permutation thereof that implies an official connection with/endorsement by Microsoft.

    Cheers,
    IT
  • by MrResistor (120588) <peterahoffNO@SPAMgmail.com> on Thursday December 20, 2001 @11:23PM (#2735764) Homepage
    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:idiots (Score:5, Insightful)

    by dangermouse (2242) on Thursday December 20, 2001 @11:31PM (#2735785) Homepage
    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!"
  • by nemesisj (305482) on Thursday December 20, 2001 @11:58PM (#2735862) Homepage
    I think that this plays right into Lindows.com's strategy. They were probably hoping to get sued by Microsoft, get tons of press, get to take shots at Microsoft in the press, and get to be hailed by all as the underdog.

    They probably would have used something like Winux if they hadn't wanted to be a target. How could they not be advised by someone that this would be trademark infringement when naming their company?
  • by alsta (9424) on Friday December 21, 2001 @12:02AM (#2735870)
    There is the debate of WHY Microsoft would do this. I would agree with the lawyer that Microsoft has a case. And I would go a step further.

    If a trademark holder does not "reasonably" protect its trademark, it will fall in the public domain. The trademark "Aspirin" was actually once awarded to Bayer if I remember correctly.

    http://www.inta.org/basics/aspirinbrand.shtml

    So pending the victory of this case, which may not line the coats of Microsoft that thick, it is a step to protect a trademark. If Microsoft let this go, some other product could come up calling itself Bindows. Sooner than later, the Empire of Redmond(R) would have lost Windows(tm) to the public domain.
  • by hyrdra (260687) on Friday December 21, 2001 @12:49AM (#2736023) Homepage Journal
    In times like these I often find it helpful to directly reverse the situation to eliminate any bias:

    For example, what if Microsoft created and was marketing a product called Minux, which was intended to provide the same functionality as Linux and used unique only to Linux technical and architectural concepts?

    Would this not be infringement? Microsoft is dead-on here, and although the Windows trademark is ambigious, you all should remember that it was granted in the first place because the name 'Windows' is in fact unique to the computer industry (whereas a company selling Windows it wouldn't be). When you think of Windows and a computer, you always think of Microsoft.

    The real question remains -- is this an attempt to gain the needed press via the Microsoft hypemobile or does the former MP3.com CEO really think he has a chance of winning ala Napster? His remark in the article regarding Microsoft's guilt didn't seem to bright and didn't address the real technical question of is it in fact infringement.

    We'll have to see on this one, although I do think this will be good to get Linux in the public eye again and possibly get some major userbases/corporations to look seriously at Linux as a viable alternative.
  • Re:Innovation (Score:3, Insightful)

    by Jeremi (14640) on Friday December 21, 2001 @01:03AM (#2736049) Homepage
    We already have VMWare and it works absolutely beautifully.


    But with VMWare you have to buy/own a Windows license, which kind of nullifies the price advantage.

  • This is just like AOL's claim that Aimster is trying to use the term "Aim" in its name to associate itself with AIM. Since I used to work at Aimster I can tell you that this was certainly the case. The name Aimster was chosen, as one would have guessed in August 2000 when it was released, because it was intended to be a combination of AIM (AOL Instant Messenger) and Napster. Then when it became apparent that AOL was going to pursue this as a trademark infringement and try to get the aimster.com domain, John Deep came up with this crazy story that it's called Aimster because "Aimster" is a nickname for girls named Amy. Then he decided that his daughter (Madeline) would change her name to Aimee.

    It's obvious (to me, at least) that "Lindows" is intended to associate the product with both Linux and Windows. It is a good name for the product (though perhaps more than a bit tacky), much as Aimster was a good name for Aimster back in the day. However, the cleverness of the name has the downside that they're also piggybacking on all the work Microsoft has done to establish and protect the Windows trademark, so they'll probably lose, and I think it's probably in their best interest to simply change their product and domain to something else. That's what I suggested to John about Aimster, but of course I was ignored.

    Then again, Michael Robertson isn't quite as naive as John, and has a lot more credibility and business sense, so maybe I don't know what I'm talking about at all.
  • by Futurepower(tm) (228467) <M_Jennings @ not ... futurepower.org> on Friday December 21, 2001 @02:55AM (#2736294) Homepage

    Microsoft is making sure this company gets a lot of publicity.

    --
    The U.S. government causes problems, then pretends to solve them by creating more: What should be the Response to Violence? [hevanet.com]
  • by Nindalf (526257) on Friday December 21, 2001 @03:58AM (#2736387)
    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)
  • Re:To me it's fair (Score:1, Insightful)

    by Anonymous Coward on Friday December 21, 2001 @06:05AM (#2736634)

    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.

    You know, I see the point of this kind of legal battle usually, but when it's phrased like the above, I suddenly start to wonder what this Lindows or Winux bad and WinZip good. Could it be that the issue is just with competing software??

  • Re:Innovation (Score:5, Insightful)

    by Zeinfeld (263942) on Friday December 21, 2001 @08:18AM (#2736850) Homepage
    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'.

  • Whither X? (Score:3, Insightful)

    by hughk (248126) on Friday December 21, 2001 @09:07AM (#2736933) Journal
    There never was an operating system from Microsoft called 'Windows'. The correct names for the operating systems were: Windows 95, 98, NT and then 2000 and XP. Microsoft themselves were concerned about the defensibility of such a generic term, which is why the GUI was known as Microsoft Windows. A GUI called Macrosoft Windows could have a problem though.

    X Windows, the GUI layer sitting on a lot of different operating systems (including, at one stage, MS Windows) has existed almost since MS Windows 1.0. There doesn't seem to have been a contest there.

    MIT plus Digital and a few other companies were behind the first version and it has spread to be an industry standard. They don't seem to have any problems.

    Lindows is a fantasy name composed from Linux and windows, which is already genericised with respect to computers. It is distinctly different. However MS will win. IP law in the US depends upon one thing, the dollar. If you have more of them, you win, whatever the merits of the case.

  • Re:To me it's fair (Score:2, Insightful)

    by Jburkholder (28127) on Friday December 21, 2001 @10:24AM (#2737147)
    >they must think they,re customers are as stupid as they want them to be

    ding ding ding... that's the correct answer! Johnny, tell him what he's won.

    That's the key, isn't it? MS has spent $$$ to make the association PC == Windows with the common-denominator PC buyers. Notice how Steve the Dell kid never has to utter the name 'Microsoft'? If I was Microsoft, I'd want to protect that status using any means.

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