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Questions over the Windows Trademark 399

Posted by CmdrTaco
from the seizing-control-of-the-english-language dept.
TTop writes "As part of the Lindows lawsuit, the judge has preliminarily ruled that there are 'serious questions regarding whether "Windows" is a non-generic name and thus eligible for the protections of federal trademark law.'" I've always been bothered by Microsoft's habit of naming things using common words (Then again, my history of naming things includes confusing and bizarre names like 'Slashdot' and 'AnimeFu' so what do I know? :)
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Questions over the Windows Trademark

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  • X-Windows? (Score:2, Interesting)

    by alanjstr (131045)
    How old is X-Windows? Is it prior art?
    • Re:X-Windows? (Score:5, Informative)

      by Fnkmaster (89084) on Saturday March 16, 2002 @01:01PM (#3173345)
      First of all, there is nothing called "X-Windows" technically, nor has the X Consortium ever referred to anything as such. There is something called the "X Window System" produced by the X Consortium, and implemented by quite a few commercial and Free systems.


      Secondly, the term "prior art" only has relevance in the world of patent law. Prior art (the existence of an invention materially identical to the patented invention) can result in a ruling against a patent in a court of law. However, in the case of trademark law, the only relevant question is whether a word has become generic, or part of the common usage. There are common rules to avoid this happening - a company should NEVER refer to a product as "Windows" because they are then referring to a product by a very generic common English term. The product should always be called "Microsoft Windows" or even better yet "Microsoft Windows Operating System" if you expect to ever prove later on that you had a legitimately trademarked name for your product. There are other rules for marketing folks about this, like only using the trademark in the adjectival as in "Kelloggs brand cereals" or (if they had been smarter) "Xerox brand copying machines".

      • First of all, there is nothing called "X-Windows" technically..

        Well since everyone I know calls it X-Windows, can we say that the word "X-Windows" officially exists?

    • Re:X-Windows? (Score:2, Interesting)

      by winnetou (19042)
      How old is X-Windows? Is it prior art?

      It is older, but is not named X-windows. From the man-page (formatting changed due to posting rules):

      The X Consortium requests that the following names be used when referring to this software:
      • X
      • X Window System
      • X Version 11
      • X Window System, Version 11
      • X11

      The license tells a bit about its age:

      The X Window System standard was originally developed at the Laboratory for Computer Science at the Massachusetts Institute of Technology, and all rights thereto were assigned to the X Consortium on January 1, 1994.
      X Consortium, Inc. closed its doors on December 31, 1996.
      All rights to the X Window System have been assigned to the Open Software Foundation.
    • According to X.org [x.org], the first commercial release of the X-windows system was back in 1986. This was part of MIT's Project Athena [mit.edu] which began in May 1983.

      According to this page [computerhope.com], Microsoft Windows 1.0 was released November 1985. It was announced in November 1983, clearly as a response to Apple's Macintosh OS.

      However, according to the Wikipedia [wikipedia.com], Xerox Parc codified the WIMP paradigm (where the W stands for Windows) for their Xerox Star system released in 1981.

      So, depending on how you slice it, the concept of 'windows' clearly predates MS's work on Windows and the term X-Windows refers to a product which was virtually the same age as the MS product.

      That's all I got from googling around for 20 minutes. I Am Not A Historian.

      • Microsoft Windows 1.0 was released November 1985. It was announced in November 1983, clearly as a response to Apple's Macintosh OS.

        More in response to the forgotten Apple Lisa which also used a GUI. The Mac didn't come out until early 1984 (hence the famous "down with Big Brother" Mac ad)
  • by k98sven (324383) on Saturday March 16, 2002 @12:51PM (#3173303) Journal
    Didn't Microsoft aquire the rights to the english
    language back in like, 1995?

    • Yes. Everyone else has been paying their Microsoft Tax on the English language. You mean you haven't? Oh excellent, there's probably a reward for turning in miscreants like you. Oops, long words like that cost extra; I gotta cut down.

      • by Mr Windows (91218) on Saturday March 16, 2002 @01:25PM (#3173440)
        Thuts th reeson ey alwayz uus wurds uf miy oon spling. Soo farr eyve mnaged tu sayv ovr ahundrd dlrs ths yere, thow miy teechrs kp komplaining aboot miy wirk. Ey stil kep grammer rles, soe ey hev tu payy th sintax (ey cn stl mek jikes, evn thow ets moore wirk. Ey'v hird tht th lrge cmpny hsn't trdemirkd hoomor, becauz thy down't inderstand et).

        Heureusement, je puis employer le français. Je trouve ceci beaucoup meilleur marché, parce que l'Acadamy m'ont donné non-pour-profiter-emploient le permis.

    • And they'd probably rename it somthing lame like
      A-EOM The Audio English Object Model.
  • Ouch... (Score:5, Insightful)

    by weave (48069) on Saturday March 16, 2002 @12:51PM (#3173304) Journal
    The irony is quite rich. They try to smack down some small company naming a product called Lindows and end up losing the much bigger prize, the exclusive use of the word Windows.

    Someone in Redmond is kicking themselves in the ass right now...

    • Let's not celebrate yet. If this judge does rule that Windows is a generic term, it will most certainly be appealed. If all the appeals are lost, it would not suprise me in the least to see an attempt to "solve" the problem legislatively. Something along the lines of MLB's anti-trust exemption.

      Basically, never bet against the money in a case like this.

      • Re:Ouch... (Score:5, Informative)

        by rgmoore (133276) <glandauer@charter.net> on Saturday March 16, 2002 @01:08PM (#3173372) Homepage
        Something along the lines of MLB's anti-trust exemption.

        As a serious baseball fan, I feel compelled to correct the mistake in this statement. Baseball's antitrust exemption was created by judicial, not legislative, fiat. In Federal Baseball, MLB's lawyers argued that baseball was not interstate commerce, per se, because all of the commercial activity took place locally. Their argument used a precident that travelling vaudville actors were not engaged in interstate commerce even if their tours traveled across state lines. Simply carrying the tools of their trade across state lines to perform essentially local exhibitions was not viewed as being sufficient to constitute interstate commerce. Since it wasn't interestate commerce, the federal government didn't have the power to regulate it, including applying antitrust law. The Supreme Court accepted the argument and ruled in favor of MLB.

        The truly odd thing about the ruling is what happened later in the process. When the ruling was later challenged, the Supreme Court upheld it on the principle of not changing old rulings even though they agreed that the old ruling made no sense. In essence they said that the ruling was stupid, they were going to let it stand anyway, but Congress was free to write new legislation to include baseball in federal antitrust law. The exemption was partially removed recently, but it's hardly Congress's fault for writing the law badly.

        • Thanks for the clarification. I've always wondered how the exemption got around the Constitution's ban on bills of attainder. This pretty much explains it. Still, I stand by the sense of my previous post. Microsoft's huge income may very well allow it to buy an exemption from the law, even if it is found that Windows is a generic term.
      • Who is celebrating? The judge just said it was a possibility. I'm just enjoying the sound of someone in the northwest of the country yelling out "holy shit, imagine if..." and having to beef up the legal defense fund line some more...

        It always annoyed me that they used generic words to describe things. I have no problem with "Microsoft Word" being trademarked, or "Microsoft Windows", but trademarking "Word" or "Windows" is silly, and even sillier is going after some alteration of it. It's not "Licrosoft Lindows" for pete's sake...

    • Re:Ouch... (Score:4, Insightful)

      by neuroticia (557805) <neuroticiaNO@SPAMyahoo.com> on Saturday March 16, 2002 @01:56PM (#3173580) Journal
      Hm. Just playing devil's advocate here for a second.

      1- "Windows", whether or not it's trademarkable is seldom called "Microsoft Windows" in the common household. It is "Windows" plain and simple. While this is MS's fault for choosing something that would *obviously* be shortened to "Windows" and thus be un-trademarkable, the public still associates "Windows" with MS.

      2- Lindows is an operating system designed to take place of Windows by allowing you to run Windows apps without running Windows.

      3- Lindows is an obvious play on the name "Windows", and it's unlikely that it was 'accidental' or based on something else such as "LinuxwINDOWSystem" or somesuch. Based on it's goal : Offer users the ability to run Windows apps in a Linux environment... Sorry, it's unlikely that they were NOT aware of it.

      Normally I'd say that the whole idea of trademarking a common name was absurd, but seeing as Lindows' target is *The MS Windows User*, I have to admit that using "Lindows" was both asking for trouble and attempting to profit off of the established image of another company whether or not the word used was trademarked by said company or not.

      -Sara
      • Re:Ouch... (Score:3, Insightful)

        by foobar104 (206452)
        "Windows", whether or not it's trademarkable is seldom called "Microsoft Windows" in the common household. It is "Windows" plain and simple. While this is MS's fault for choosing something that would *obviously* be shortened to "Windows" and thus be un-trademarkable, the public still associates "Windows" with MS.

        You're absolutely right about this, in my opinion. What's more, my company is trying to learn from MS's mistake. We are soon going to release a product with the name "XYZ Genericword." (Obviously that's not the real name, but it's a generic nontrademarkable word preceeded by a trademarked three-letter acronym.)

        During the last couple of months, we've gotten lazy and started referring to the product by the generic word only, leaving out the acronym. This sent our marketing people in orbit. Now they're on a crusade. Every time somebody uses the generic name alone in an email, or even verbally, they get corrected, loudly and publicly. Because we all know that if our product name gets reduced to that single generic word, we're up a creek as far as trademark protection goes.
      • While I quite agree with you that Lindows named its product to connote an association with Windows, I do not believe they do so in such a way as to dilute the Windows trademark and create confusion in people's minds. I don't anybody, given the word 'Lindows' would assume it was a Microsoft product, or that it was Microsoft Windows.

        I believe that's the legal standard for deciding whether or not a trademark is being infringed. I actually believe that, for the consumer, allowing Lindows to be called Lindows is a help. It associates it with the product it tries to emulate while being distinct enough to not be confused with the product it tries to emulate.

        • Hm. I don't know about the legalities of it, but "riding piggyback" does seem a bit shady to me. MS Windows is an OS. Lindows is an OS that is trying to give people an alternative to Windows. The purpose of naming it "Lindows" is that it's combining LINux and winDOWS. I do not believe that there will be confusion between the two, however I believe that it is unfair business practice to purposefully use part of a better-known product's name in a product whose hope is to replace that better-known product in at least a handful of situations. I also believe that if trademark law doesn't cover that, it should. Windows, while it shouldn't be allowed to be a trademark it obviously has become part of the project's image as clearly as "Uh Oh" has become branded with Spaghettios and "Gimme a break" is branded with Kit-Kat. Both phrases have been around longer than the products... But if you see another candybar using "Gimme a break" then you're going to percieve it as a rip-off of the Kit-Kat.

          If your company has "Product A", and another company attempts to create "Product B" to replace your product you're not going to be happy. If they name it with a name that is so similar to the name you use and you realize that most of your userbase (most people) are morons who are easy to confuse, and that "Product B" is going to market itself as being more stable than your product, yadda yadda yadda-- you're not going to want them to have a name that is similar to your product name because you've spent years branding it and you don't think Product B should come along and be able to take advantage of that.

          Of course, you/we probably wouldn't be so stupid as to name it something generic. =]

          -Sara
      • Re:Ouch... (Score:3, Insightful)

        by markmoss (301064)
        IIRC, X-windows preceded MS Windows, and in any case, computer journals used "window" to describe a graphical area on the screen back when Xerox and Apple were the only places working on computers with them. That is, MS tried to grab a generic industry term and turn it into a trademark. The trademark "Zipper" was once voided because, even though it was a new word invented by the manufacturer and sole patent licensee of the teethed fasteners, it became a generic word in common use. For MS to claim ownership of "windows" in regards to computer software is to ask the courts to more than reverse the zipper precedent.

        And if MS somehow wins on that, to claim infringement they also have to claim that Lindows as marketed is likely to be mistaken for their own product. (Like a "Bolex" watch.) That shouldn't fly either, because Lindows whole marketing pitch is that it _isn't_ Windows.
        • Re:Ouch... (Score:3, Informative)

          by elandal (9242)
          As with "Windows", X-Windows isn't that. There is the X Window System, also called X and X11.

          However, many people call it "X Windows" (or X/Windows or X-Windows) just like many people call "Microsoft Windows" just "Windows".

          I usually call it just X in speech and X11 in written.
    • I'll bet all of those people who make those glass thingies to go in the walls of houses sure are breathing a lot easier now.

      What you realy be funnies is if Linus joined the suit with Microsoft, and asked for half of any damages because of Linux® being his trademark!
  • by paugq (443696) <pgquiles@elpaTWAINuer.org minus author> on Saturday March 16, 2002 @12:52PM (#3173307) Homepage
    Now that judges seem to be a bit sensible, I think it's the right moment to send them a lot of similar cases: what about Adobe Illustrator? (remember the KIllustrator affair)
  • by Ozan (176854) on Saturday March 16, 2002 @12:56PM (#3173326) Homepage
    AFAIK generic words can only be the trademarked in conjunction with the companys name, like 'Microsoft Word'. Otherwise Microsoft could have sent its lawyers to every place where the term "X Windows" is used long ago.
  • by jjeffries (17675) on Saturday March 16, 2002 @12:57PM (#3173329)
    I had something ineteresting to fill this space, but then Google found this article [fool.com] that does a much better job of proving my point than I could in this tiny text area.
  • by AlaskanUnderachiever (561294) on Saturday March 16, 2002 @12:57PM (#3173330) Homepage
    First we have Windows. I've been waiting for Carpet, Ceiling, and Enclosed Screen Porch. Soon I will have my software house, with each item totaly incompatible with the other. . .
  • by President Chimp Toe (552720) on Saturday March 16, 2002 @01:01PM (#3173346)
    There was a similar court case [spcnetwork.com] in the UK recently.

    McDonalds took Yu Kwan Yuen, a chinese retaurant owner to court for naming his restaurant "McChina". The judge was quite correct in ruling that McDonalds could not monopolise the prefix "Mc". It means "son of" in scottish, and Yuen had been living in scotland for some time and adopted "McChina" to indicate "Son of China".

    But would he have named his restaurant McChina if McDonalds didnt exist?

    This is a similar case to the Lindows situation. Although they are deriving their name from a generic source, they are (to some extent) stepping on somebody else's turf. I'm not sure what the right answer is, but certainly in the McChina case I think it wsa the correct outcome.
    • by A_Non_Moose (413034) on Saturday March 16, 2002 @01:31PM (#3173462) Homepage Journal
      Does this mean in the Lindows suit Microsoft is being a McBitch?
    • The case you mentioned is indeed a very interesting case, but it doesn't directly support the Lindows side of the case. Why?

      In the case you mention, the man proved that the Mc- prefix actually meant something in a language that he knew well, and that it made sense to name a restaurant McChina because of the meaning of the prefix. Therefore, there was reasonable doubt that he was capitalizing off of McDonalds' success.

      However, in the Lindows case, there is no doubt that the product would have been named Lindows if there was not already a product named Windows that was created by Microsoft. Indeed, if you look at Lindows' about page [lindows.com], it is obvious that the name is a mixture of Windows and Linux, and doesn't derive from another language.

      I, too, think the McChina case had the correct outcome, but Lindows doesn't have that luxury. IMO, Lindows will lose.
      • X-Windows came before MS-Windows, Linux runs X-Windows. The term "window" was coined along with the first GUIs of the 60s and 70s to mean a segmented rendering space on screen.

        MS-Windows is called Windows because of that research, Apple Macs have "windows" into which you type. GEM had "windows", EVERY GUI on planet earth calls them "windows". Its a generic term.
    • McDonalds took Yu Kwan Yuen, a chinese retaurant owner to court for naming his restaurant "McChina". The judge was quite correct in ruling that McDonalds could not monopolise the prefix "Mc". It means "son of" in scottish, and Yuen had been living in scotland for some time and adopted "McChina" to indicate "Son of China".

      Quite a few previous rulings against "McDonalds" in the UK, especially in Scotland. The Scots don't take too kindly to a US fast food company using the name of this highland clan.
  • Trademark law (Score:2, Interesting)

    by saridder (103936)
    I think it's unfair, but you can trademark common english words. I just herad a report on NPR last week discussing the legal basis of a compnay trademarking a memory pill called "Senior Moment." A law profesor said it is OK to do.

    But, he also said other people can trademerk the same name as long as the two products do not belong in same category (such as software) and do not fool consumers. Therefore, it would be perfectly leagl to start a Microsoft clothing line (or windows clothing line). As for Lindows, it may be considered confusing to the lay consumer to have a Windows and Lindows OS in same market. But IANAL so don't quote me in court if MS tries to clean your clock when you sell Microsoft brand T-shirts.

    • a compnay trademarking a memory pill called "Senior Moment"


      A product with a trademark name its buyers can't remember if any there was..

    • A law profesor said it is OK to do.

      Eben Moglen, to be specific.

      Daniel, who heard the same report and was startled to recognize the lawyer's name.
    • Therefore, it would be perfectly leagl to start a Microsoft clothing line (or windows clothing line).

      This is questionable, given that Microsoft is a brand name recognized almost universially, not only in the software market. But you might be interested in the fact that there exists (existed, at least) a beer in russia called "Windows 99." Try searching Google for "Windows 99" beer [google.com] to find some articles about it.

    • Exactly.. We need to keep in mind, as Hormel pointed out, that a trademark is a "Proper Pronoun."

      A trademark should be used as such, which one could argue MS hasn't been doing. (keep in mind the enforcement stuff.) To TRULY be a trademark, MS needs to always refer to it as "Windows operating system" (OR MS Windows operating system) as it describes the OS (don't get technical nit picky here, I realize that the Windows itself isn't an OS... some don't..)

      MS has been pretty good in their own materials as saying Windows operating system, IIRC. I know I've seen them do it, I don't know if they're consistent. But the fact is they've let us, the public get away with calling it just "Windows" for so long. This reminds me a lot of the Xerox issues mentioned- they don't want people saying "xeroxed". (notice the lack of capitalization.) So they enforce it. Microsoft has been allowing us to call it windows for too long.

      So, as I see it, windows is 1. a generic term, and 2. Has been so misused over time that it now refers to any windows system (even X, although we're all smart enough to refer to it as X or XWindows or XWindows system or...).

      Am I missing an argument here??

      Oh, and you can have two trademarks the same if it's not in the same field as you pointed out.. But with Mac OS and their Windows version (stupid people call it windows.. really stupid people, obviously.) and XWindows, this is in the same field, and so... ugliness as above pursues!

      .
      • We need to keep in mind, as Hormel pointed out, that a trademark is a "Proper Pronoun."

        Wrong. According to Hormel's page [spam.com], "a trademark is a formal adjective and as such, should always be followed by a noun.".According to Apple's page [apple.com], "Trademarks are adjectives used to modify nouns; the noun is the generic name of a product or service." For example: Windows operating system, Linux kernel, Disney movies, Alpine stereo, SPAM luncheon meat, Macintosh computer, etc.

        • I stand corrected..

          /me removes head from ass to remind self to proofread before posting. pronoun.. adjective.. yeah, that was dumb.

          Adjective is what I meant.. I hope you can figure that out by the rest of my mini-rant. Thanks yerricde, for pointing that out!
  • by Seth Finkelstein (90154) on Saturday March 16, 2002 @01:04PM (#3173360) Homepage Journal
    Naming something Slashdot was a good idea [dow.com] -at least in terms of trademark law!

    However, naming something Windows was a bad idea [viennapat.com] (again, for trademark law)

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • by BlueF (550601) on Saturday March 16, 2002 @01:05PM (#3173364)
    >>"I've always been bothered by Microsoft's habit of naming things using common words." Naming a product after an easily recognizable, representative word, even be it a common word, just makes sense for any company trying to sell said product. Granted, in the extreme, I think our shared concern is that Microsoft names their products after common words, such as Windows and Office, and then trying to bar anyone else from selling a commercial (software) product is a bit draconian. In the extreme, it's kind of like patenting the color black, air, or in an actual example, the hyper link.
  • by PrimeNumber (136578) <PrimeNumberNO@SPAMexcite.com> on Saturday March 16, 2002 @01:05PM (#3173368) Homepage
    Microsoft started using using common generic names after hiring a marketing suit named Rowland Hanson whose previous experience had been with Neutrogena.

    Word & Chart, were the first to be name generically. What isnt commonly known is that Gates had to be argued and cajoled into using Windows, he wanted to call it "Interface Manager"

    Incidentally, Hanson was among the first to throw software samples into magazines (freebie demo disks). Given his past experience, it was a small leap from throwing perfume samples in Cosmo, to program samples in PC Week.

    My $0.02
  • by JanneM (7445) on Saturday March 16, 2002 @01:06PM (#3173370) Homepage
    I'm not sure it's such a good thing a trademark can be lost just on the basis of being a common word. I mean, a common word where, exactly? It's really not easy to think of a new name that doesn't sound utterly stupid, and then you run the risk that whatever you came up with actually _is_ a common word in some language. You could end up with many product names that can't be used in all the markets you want to use it.

    And where do you draw the line? Is 'Red Hat' too common? 'Dell'? 'Ford'?

    Of course, some due diligence is always required anyway: Honda apparently tried to name [www.dn.se]one of their models 'Honda Fitta', but found out what it meant in Swedish in time... With slogans like "Small outside but large when you're in it" or "It's a daily pleasure" it could have become a very real embarrassment for Honda.

    /Janne
  • Intent? (Score:3, Interesting)

    by Evangelion (2145) on Saturday March 16, 2002 @01:08PM (#3173375) Homepage

    I realize that MS might not have as open-and-shut case as they want, but I doubt they'll lose this, simply because of the intent of the Lindows guy.

    He's selling a directly competing product, with a name that differs from Windows by only one letter. This is perfectly analogous to trying to sell a competing cola called "Loca Cola", or some such. He's clearly trying to derive benifit from the "Microsoft Windows" trademark.

    • Re:Intent? (Score:3, Interesting)

      by i_am_nitrogen (524475)
      ...and WinZip (WinAmp, WinRar, ...) isn't? There's nothing in trademark law that says the product has to be competing to go after it. Microsoft wants to shut down Lindows.com, Inc. (notice that on Lindows.com it never says Lindows without another distinguishing suffix, such as "Lindows Insider" or "LindowsOS" or "Lindows.com, Inc.") because they might actually be a threat to the MS Windows monopoly. I think that Lindows was the perfect name choice. It has Lin, from Linux, and dows, from Windows, to indicate compatibility with both operating systems; not to ride on Microsoft's trademark (Microsoft are the ones who, using common names, tried to benefit from others work (such as those who .. uh... first made glass)). Suppose Microsoft wins? Big deal. LindowsOS will just get a new name. It's not like they need the name Lindows -- they can do just fine with any other name I'm sure.

      Final point: Microsoft has given them more publicity than they could ever buy with the meager funding of a post-dot-com startup. It's kinda funny, really.
  • As much as I hate Microsoft's anti-competitive antics, I think that their marketing department is brilliant. Think what they accomplish by giving their software "ordinary" names:

    They give the impression that their software is accessible to the masses (which, to a large degree, it is).

    The best way to make your product a household name is to derive it from a household name.

    Words that people are already accustomed to using are non-threatening. (Think about all the weirdass company names that you can never remember how to pronounce, let alone spell.)

    If Microsoft had picked a unique name besides "Windows", and another company ripped off the first letter and changed it to an "L", then perhaps Microsoft would have a leg to stand on.

    • I think if you replace BRILLIANT with BALLSY this would be more true. I'm sure many marketing types have thought of doing this, yet did not have any potential ground to stand on if something went wrong. Microsoft is constantly doing things that take alot of balls to do, because they think they can get away with anything they want. Hopefully they will learn their lesson.
  • by SlashChick (544252) <erica@@@erica...biz> on Saturday March 16, 2002 @01:16PM (#3173410) Homepage Journal
    The article referenced at the top of the page doesn't go into much detail regarding the outcome of the suit (which will finally be decided in a year or so), but here [nwsource.com] is an article that might be a bit more informative.

    The most interesting part of that article is the following quote:

    "'There's no evidence Windows is generic and strong evidence it's not,' responded Karl Quackenbush, an attorney arguing for Microsoft. He said Microsoft has spent more than a billion dollars promoting and protecting the name Windows. That includes sending letters to hundreds of infringers warning them not to use the name, he said.

    In any case, he said, names such as Amazon.com and Apple -- two other generic words -- have been adjudged valid trademarks because they've acquired a 'secondary meaning' through their strong association to products."


    So, even though Microsoft might not win the preliminary injunction, it is likely to win the case. After all, if Apple and Amazon were both held up as trademarks in court, it's likely that the ubiquitous "Windows" will be as well.

    I, for one, will be glad if "Lindows" loses in court simply because it is confusing to say out loud. Try saying this out loud: "I'd like some help with configuring Lindows, please." I fully support anyone's right to create a new OS, but I don't support naming a product in a confusing manner (and playing off the name of a more popular product), which is exactly what Lindows is doing. This sort of infringement is what trademark law was designed to protect, and I think Microsoft will win this one in the end.
    • IF Lindows loses, they should turn around and immediately call their product "Windows Linux" or something that STILL incorporates "windows" in it but clearly delineates itself from M$ Windoze. M$ may have fits but in the end they WILL lose in trying to prevent the use of the common word "windows" in a non-M$ os product.

    • "In any case, he said, names such as Amazon.com and Apple -- two other generic words -- have been adjudged valid trademarks because they've acquired a 'secondary meaning' through their strong association to products." (Microsoft's Lawyer)

      The problem here is that Microsoft's "Windows" is not a secondary meaning to "thing you look through", but the same generic "subpart of display" which is used by X, Mac, libcurses, and others.
    • There's a huge difference between "apple" or "amazon" and "windows". The first two are common english words, but they're entirely unrelated to the product/company they describe. On the other hand, "windows" actually literally describes something in Microsoft's OS. It's a functional description, not an arbitrary label.

      I doubt a grocer would be able to trademark the term "apple", and a jungle-tourism outfit probably would have only a weak claim on "amazon".
    • But Apple didn't try to stop people from selling fruit called "apples".

      Amazon hasn't sued Brazil for naming their river after their company. And one doesn't order books from the Amazon river.

      Point is, the word "windows" in connection with GUI's indicates that the graphical shell draws little boxes in which program output is displayed, more or less. Now, trademarking "Microsoft Windows" is valid. But maintaining that the word "windows", in connection with a GUI product, is proprietary? Insane. GEM had windows, the Mac OS uses windows, yadda yadda.

      Not to say a stupid judge can't ignore sanity. For insance, there was an old family restaurant in the Chicago burbs named McDonald's. It existed years before Krock created his cerealburger stand. But, McDonalds the corporation actually took the poor restaurant owner to court and found him guilty of trademark infringement!
    • It's more complicated than the MS argument ("Amazon and Apple") makes it appear. In particular, "Amazon" and "Apple" are not terms of art in their respective fields (books and computers or music). There's a rule of trademark law that says that I can't trademark the term "car" for my brand of automobiles, even though it is a perfectly legitimate tradmark for my brand of apparel or somesuch.

      The term "window" was used by the Xerox PARC folks to describe their rectangular onscreen viewports well before Microsoft had any thoughts of trademarking it. The X Window System folks made a big deal of not calling their system "X Windows" back in the day to avoid getting sued by MS: they certainly would have called it that otherwise. In fact, there were T-shirts printed back in the day with the slogan "It's a window system called X, not a system called X Windows" precisely for this reason.

    • by coyote-san (38515) on Saturday March 16, 2002 @02:35PM (#3173770)
      This argument is totally bogus.

      Nobody expects to eat an Apple computer.

      Nobody hopes to have wild monkey sex with an Amazon website.

      But "windowing" graphical user interfaces is a term of art that has been incorporated into countless products, many predating the first commercial release of Windows. (And to answer the inevitiable point, MIT was working on the X Window System long before the first vaporware announcement of Windows 1.0, and it was released outside of the Athena project many years before the first practical release of MS Windows (3.1)).

      Even the first releases of MS Windows was called just that - Microsoft Windows. I have no problem with MS enforcing a trademark on "Microsoft Windows," but over time they (and others) have abbreviated that to just "Windows" and now Microsoft is trying to claim that the unadorned word is not a generic. Well, tough, it is.

      I should also reiterate my earlier point about the envitable confusion about what "X programming" is. "X" is also fairly generic, but there are billions of lines of code written to use the X Window System, and it's been commonly abbrievated to just "X" for close to two decades. Yet I'm already seeing indicators that "X programming" may refer to development for the very limited market, proprietary Microsoft X-Box.

      So it shouldn't be hard to predict what I hope the judge will rule: "Microsoft Windows" can be trademarked, not "windows" alone. Ditto "Microsoft Word" vs "word," "Microsoft Office" vs "office," etc.
    • So, even though Microsoft might not win the preliminary injunction, it is likely to win the case. After all, if Apple and Amazon were both held up as trademarks in court, it's likely that the ubiquitous "Windows" will be as well.

      The thing is that "Apple" and "Amazon" are generic words used completly outside their usual context. Which puts them just below completly madeup words on the tradmark protection scale, making them strong trademarks. "Windows" is more of a generic description. Since "Window" as meaning part of a computer GUI predates Microsoft's product. Generic terms used in context or as simple descriptions of a product tend to be considered weak trademarks.
    • There's one aspect of Apple vs Windows that is pretty different, though. "Apple" had no special meaning within the computer setting, wasn't a computer-specific term, etc. until that company entered the business. "Windows" was an increasingly commonly used word with special meaning within the computer setting, before Microsoft introduced that product. Their calling a product Windows was no less stupid than if I introduce a product called "RAM" or "disk" or "pointer" and then claimed I had a trademark on the word.

      Actually, I did once write a [pretty crappy and dubiously useful] C64 program called "Sloppy Disk". If I had sold it, and spent a lot of money marketing it, would we now be living in a world where people have to say "Disk is a registered trademark of the Sloppy."? No way.

  • M$ always makes it simple to figure out what their product is:
    1. Internet Explorer - a browser.
    2. Word - a word-processor.
    3. Media Player - a media player!
    4. Windows - a windows-based OS.
    etc...

    Making everything easy-to-understand is the brilliance of marketing and also shows how well M$ knows its customer base. Apparently they are the type who are easily confused... the perfect customers for M$.
    • How the f*ck could there be two applications named Explorer if they wanted to make it easy? "Open Explorer, no, not the browser - not the WEB browser, I mean the file handler..."
      • Actually, they are one in the same. This is part of the whole "Integrated Browser" issue. If you type "D:\" in "Explorer" you get the Explorer interface for your D drive. If you type "http://www.microsoft.com" in Explorer you go to the Internet interface of Explorer. Another example if you go to "ftp://coolbeans.com" in [Internet] Explorer you can drag and drop files to and from D:\ no differently then if you had to "Normal Explorer" windows open.
    • This is why Microsoft Access is a remote access system and Microsoft Outlook is designed to support webcams. Frontpage is a program for designging print media. This is also why I have to hit the start button to shut down.

      It all makes perfect sense now.
  • by autopr0n (534291)
    I thought hemos thought up "slashdot". That's what it said in Wired, anyway.
  • I seem to remember that "Windows" was determined by a court in South Korea to belong to the publisher of a Korean desk diary system and not Microsoft, and thus Microsoft was unable to print on paper its manuals or other material, probably unless it included the full "Microsoft Windows Operating System" moniker.

    But this was some time ago and maybe Microsoft has bought out the other small company?
  • www.uspto.gov [uspto.gov]
    It looks like there are a lot of Windows(tm) out there.
  • The fact that Microsoft is a big adopter of standard english words for its software and defend against the use by others of these words as for a long time always irritated me.

    You can't copyrigth an English word, but it seems that their armies of lawyers have come around this problem. Same for Explorer, Word, and a few others.

    What makes their claim valid is that they always prepend the MS trademark in front of the other words. However, lately I have seen documents from the Beast where the simple Word followed by TM was just mentioned. I did a double jump when I saw that, because this is the end of the English language as we know it if they can argue about this in court.

    PPA, the girl next door.
  • Microsoft uses pretty generic words for most of their products. It's quite clever, because the uninformed non-computing masses seem to assume that the Microsoft one with the genricish name came first and/or is the market leading product and other products are ripoffs, regardless of the actual situation and history. Just for laughs, I got their product listing (the dropdown box here [microsoft.com]) :

    A few examples - there's Microsoft:
    • Office
    • Word
    • Access
    • SQL Server
    • Pocket PC
    • Project
    • Money
    • Flight Simulator
    • Small Business Server
    • Reader
    • Windows
    • CRM (probably, anyway, to come...)
    • Internet Explorer (I know a couple of (very stupid) people who think that Microsoft literally owns the internet because of this one.)
    • And let's not forget MSDOS - "Microsoft Disk Operating System"... which was _far_ from the first DOS, and pretty nearly the worst DOS...


    On the other hand, there's a few ones they seemed to have pulled out of their backside, like any other software company:
    • Powerpoint (A program for managing electrical sockets???)
    • Excel
    • Sharepoint
    • Encarta
    • Xbox
    • Outlook
    • Visio (they bought it, I suppose it doesn't count...)


    I'm sure there are lots of other examples in both categories.

    When you think about it, the amount of arrogance displayed by use some of those product names is quite astounding... I mean: "SQL Server" ??? All they did was take Sybase and pervert it a bit....

    I really don't know which of their products are trademarked as "Microsoft + $name" and which are just "$name", but it's still a good example of their "Elite Marketing Skillz"...

  • The term windows has been associated with windowing systems (obviously) since long before Microsoft Windows. Microsoft were the only ones audacious enough to claim the name Windows as their own.

    So windows was / is a generic term even in the world of windowing systems which makes it even harder to protect. Had microsoft invented the term window it would have been easier for them to protect.

    It's entirely possible to trademark a name in a particular market that would ordinarily sound like a regular word provided that the name wouldn't be a generic term in that market. e.g. making a medicine called Windows or a truck called a Ram. However naming a truck Truck would give you no protection.

    So it seems that windows is a very weak trademark because it is derived from windowing systems which were around and called windowing systems before windows.

    Microsoft have a long history of these kind of poor trademark choices - look at MS-DOS - ok you can't produce a product called MS-DOS - but DOS itself is a generic term.

    • Microsoft were the only ones audacious enough to claim the name Windows as their own.

      In one of the numerous books I've read about Microsoft, one of their marketing people indeed said the name "Windows" was chosen in a deliberate attempt to co-opt the generic. They do this whenever possible, like "Flight Simulator," "Network," "XBox," "Money," "Internet Explorer," etc.

      ~Philly
  • Just be sure that your trademarks don't infringe on someone else's freedom of expression! [kembrew.com]

  • Ah, the sweet irony (Score:4, Informative)

    by Quixote (154172) on Saturday March 16, 2002 @03:24PM (#3173989) Homepage Journal
    Microsoft in the past has argued [toad.net] that words like "internet" and "explorer" are generic, and can't be trademarked. All the while claiming (with a straight face) that "windows" is not generic, and demands trademark protection.

    A little background. In 1994, a little-known Chicago area company called SyNet started distributing a web browser, called "internet explorer". Then, in 1995 Microsoft came out with its own "internet explorer". The Chicago company sued, and went bankrupt fighting the behemoth. Eventually, in 1998 Microsoft agreed to pay $5mil to settle the case (after SyNet had gone bankrupt, so they basically accepted anything that they could).
  • I seem to recall about the lawsuits that were brought against MS for a "windowing" GUI, MS argued that "Windows" word and the whole "windowing" scheme was an obvious social trend in computing and could not be trademarked, copyrighted, patented or protected. This argument seemed to help MS and they skirted the lawsuits and went about their business.... Only to later copyright, patent and trademark everything about the Windows GUI.
    Sort of like when Henry Ford was sued about patents on the Automobile shortly after the Model T. (Business of Armerica by John Steele Gordon) He argued that the Automobile was a "Social" device and should therefore not be applicable to a patents. Of course I am sure that he then went about patenting everything about the Model T once the patent lawsuits were over.
    Should Dante's Inferno be revised to include not only the Popes in hell but also businessmen who have behaved in such a double standard manner.
    It is not sour grapes when the dishonest win but a feeling that civilization has suffered a damage that will be harder to repair each time.
  • Company A: Microsoft, producer of baby gold bond medicated powder. ooh.. and Windows(R)

    Company B: Lindows, producer of a linux "?distro?"

    Company A owns trademark "Windows(R)",

    company B uses name 'Lindows',

    Company A says "I don't like you, you are based off Linux, not windows!! you are in voiolation of our trademark, give it up!"

    Company B "Trademark? are you retarded?"

    Company A "you will get people confused, they will think Lindows is Windows"

    Company B "How many people confuse 'Loser' with Woser'?"

    Company A "Shutup or I shall taunt you a second time."

    Company B "Bite me foot boy"
  • by Anonymous Coward
    Yes thanks for making a link to slashdot [slashdot.org]. I would have never found slashdot with out it!
  • This is huge . . . (Score:3, Informative)

    by werdna (39029) on Saturday March 16, 2002 @09:45PM (#3175427) Journal
    While not the final word on the question, this is a huge issue. As reported, the Microsoft saga with the United States Patent and Trademark Office [uspto.gov] reflects significant issues with the registrability and enforceability of the WINDOWS mark, although they were ultimately resolved in Microsoft's favor after an appeal. The TARR report there interesting relates that the windows mark is presently the subject of a, perhaps unrelated, cancellation proceeding before the USPTO.

    But the difference between a straightforward trademark claim, and one where a serious challenge will be mounted to a mission-critical asset (such as the WINDOWS mark), makes a responsible company far more interested in reaching a settlement or accomodation. But this is Microsoft, who isn't even afraid of the United States Government.

A LISP programmer knows the value of everything, but the cost of nothing. -- Alan Perlis

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