Lindows Legal Challenge

pphrdza was one of several readers who sent in the latest on the Lindows front - it's a Ny Times (Free reg. blah blah) article entitled Glass Panes and Software. Not a whole lot of new information - more around the legal challenge blah blah.

It's Microsoft, what did you think would happen?

[KaiKaitheKai]

Okay, you take your proudct, that directly competes with Microsoft's. You change one letter of it, and market it. What do you think is going to happen?

The $200 and $300 computers are perfect for those people who just want to visit this new-fangled internet thing, or type something up. It provides a low-cost, low-risk entry into the digital world. This is why Microsoft feels threatened.

Now, Lindows is not Windows, that is true. It may not be able to run as many programs, etc, fill in whatever you want, but the average super-low cost user doesn't need this. All they want is word processing, and internet access. If you don't want to spend $400 For Office XP, and $200 for Windows XP, because all you want to do is type and surf, you will opt for the PC that costs less than your OS.

its a Ny Times (Free reg. blah blah), -1 redundant

[stefanlasiewski]

it's a Ny Times (Free reg. blah blah)

-1 redundant.

Come on, someone says this every time there is a NYT story. Quit it. We know.

Anyone who reads slashdot knows this.

Anyone who goes to NYT will find this out soon enough.

Re:Who here has legs

[BeeShoo]

You missed the point -
Apple products, including the Macintosh, have nothing to do with apples.
The Compaq Armada is not, and will most likely never be, a fleet of ships.

Microsoft Windows IS software that creates windows.

Re:Question

[stratjakt]

I've had trouble explaining to people how 129$ up front and 75$ a year from there on in is "Free" software.

Re:Who here has legs

[vrmlguy]

The U.S. Patent and Trademark Office may only require an applicant prove acquired distinctiveness if the mark is merely descriptive of the goods or services. Common words or phases that are NOT merely descriptive of the goods or services are registrable without the need to prove the mark has acquired distinctiveness. For example, there is a well-known company that chose the word "apple" as a mark for the sale of computers. "Apple" is of course a common word. However, when used in connection with the sale of computers it is highly unique and even arbitrary. Apple Computer Co. was not required to show that their mark had a distinctive secondary meaning apart from the original meaning.

The trademark for "Windows" is in trouble because the word was used to describe computer GUI software long before Microsoft introduced their product.

Lerox

[nucal]

"Although Lindows.com certainly made a conscious decision to play with fire by choosing a product and company name that differs by only one letter from the world's leading computer software program," the judge wrote, "one could just as easily conclude that in 1983 Microsoft made an equally risky decision to name its product after a term commonly used in the trade to indicate the windowing capability of a G.U.I."

The irony here, of course, is that it was Xerox [boka-software.com] that pioneered the GUI ...

Re:It's Microsoft, what did you think would happen

[blakestah]

What are you talking about? The article is about trademark law. Back in the day, Microsoft was granted a trademark on the name Windows. Now, you can't trademark a word commonly associated with the product you are making. For example, I couldn't trademark the name "ice cream" for my ice cream product. The word is commonly used for that already, and this has two negative effects. One, I gain value by associating my trademark with the words defining the product. Two, I shut out all my competitors from being able to market "ice cream".

In Microsoft's case, the answer will be pretty clear. The trademark on "Windows" should never have been granted in the first place. It was already a common name in computer software. The fact that Lindows changes one letter is irrelevant if the Windows trademark is invalid.

And the preliminary injunction said it was invalid, and allowed Lindows to use its name pending trial. Expect Microsoft to get slammed. But don't worry - this will not affect trademarks on WindowsXP, Windows2000, Windows3.1, or Windows NT, each of which can stand alone as its own trademark.

But the generic term Windows will be gone. And plenty of other computer manufacturers will be quick to use Windows in the names of their products.

is that windows or Windows(tm)?

[dubbreak]

from the article:
"consumer survey that found that 83 percent of people who used PC's at work and 73 percent of PC users at home regarded Windows as a Microsoft trademark and not a generic name
" ..and how many of those people used computers before 1991 (let alone the early 80's when computers were cost prohibitive) , and how many of those people have ever directly used an os other than a M$ product? what none? so a bunch of people that have only used "windows" thinks that "windows" is a term that M$ pioneered.. go figure. Maybe if they didn't capitolize it just windows, people would remeber they have em in their house ("but i think maybe M$ has the rights to them too"). I'm gonna start a new product called Doors, oh lemme guess that'll dilute windows won't it... geez

Generic terms always risk loss of trademark

[Uninvited Guest]

Microsoft may be in trouble on two fronts here. First of all, "windows" seems to be a word that was used for GUI's before MS marketed their product as Windows. Second, every GUI-paned desktop environment looks like windows in a building (or on a desk, I suppose), so "windows" has become a generic term, even if it wasn't one before. If everyone thinks of GUI desktops as "windows", then MS doesn't have a right to retain a trademark on it. Worse, it's a common word in the language, which makes use of it even more risky. Remember [4hb.com] "cellphane, "aspirin", and "escalator"? They all used to be trademarked terms for products. Microsoft's choice of terms isn't even as good as those.

Re:Pre-emptive strike

[Anonymous Coward]

Before anyone mods up a stupid comment - would you be up-in-arms is Microsoft's next server platform was called Minux? Thanks. Next.

You are missing the point.
Windows is a GENERIC term. Linux is not.
As simple as that.

Re:It's Microsoft, what did you think would happen

[theLOUDroom]

Okay, you take your proudct, that directly competes with Microsoft's. You change one letter of it, and market it. What do you think is going to happen?

You are not accutately describing the situation. Windows is a generic term. Trademarking windows is like me going and trademarking "wiper blades." It's a generic term already in common use, just like windows was. It shouldn't matter if my wiperblades company gets 90% market share, I picked a generic term.

BTW Xwindows only differs from windows by only letter too, so even with your logic MS should loose their trademark.

Anyone would do it...

[NineNine]

Okay, you take your proudct, that directly competes with Microsoft's. You change one letter of it, and market it. What do you think is going to happen?

Pretty much any company would do this. And, Lindows is going to lose. Try to open a restaurant named "Mc Ronald's" and see what happens. Or a store named "Bal-Mart". Or a drink named "Coca-Mola". The guys at Lindows obviously have never used a lawyer.

Re:My prediction

[MonTemplar]

Microsoft's next trademark: Mouse(R)
Lindow's next product: Louse

Douglas Engelbart (the inventor of the original 'mouse' back in the 1960s) might well have something to say on that one...

Besides, it's always been a Microsoft Mouse, as opposed to the Apple Mouse or any of the myriad other mice out there. Bit late for them to try and trademark that one. Unless, of course, they manage to get the same guy that granted them the 'Windows' trademark... :)

Re:Microsoft Forced Windows Commander to change...

[miffo.swe]

You shouldnt have changed your trademark. I can understand you feeling threatened but they have nothing to base their demand on legally.

They have a trademark composed of two words. That is Microsoft and Windows. They could get a trademark for a composed word of Micro and Soft, ie Microsoft. No way in jose would they have gotten approval for either soft or micro if they wore applied for by themselves. The same applies for "Microsoft Windows" wich they do have a trademark for. A trademark consisting of two worlds is only covering those two words in conjunction with eachothers. Just because they have a trademark on "Microsoft Windows" doesnt mean that they have any rights whatsoever to the world "Windows" or "Microsoft" for that matter. Microsoft is covered by its own trademark outside the "Microsoft Windows" trademark. Windows is not trademarked in its own trademark and thus Microsoft has no rights to the word Windows in any way. Thats why this trial is such a shame and shows what an extrem elitism that resides in the higher levels of Microsoft.

You were fooled like nothing i have ever seen.

Trademark clarification

[doogieh]

Unless MS comes up with some good arguments, I think there is a decent case that Windows is indeed generic.

If Windows is ruled a "generic" mark for a windowed operating system, then it is irrelevant that there is secondary meaning in the term "Windows" to the general public -- the trademark is likely invalid. period.

If Windows is ruled as merely "descriptive" of a windowed operating system, then secondary meaning could be shown pretty easily by MS (i.e. when I say "Windows" you think of MS Windows, unless you are in the construction industry) and the trademark is more likely to be ruled valid.

So, this may turn out as a fight over whether windows is "generic" or just "merely descriptive." Given the preexistence of XWindows, Lindows has a decent case. But many windowed operating systems existed that didn't need to use the word "windows": GEOS, GEM, MacOS, Xerox Star, etc. Points for MS. However, and here's the kicker... go into any of these operating systems, and look at the programming guides, and what to they call a program "window?" A Window! (Yes there are widgets too but they are not a window).

Anything construed in this comment as legal advice or a legal disclaimer is false.

Re:Who here has legs

[bpowell423]

It seems Microsoft has a habbit of naming products "Microsoft Word", "Microsoft Flight Simulator", "Microsoft Windows", etc., and then dropping the "Microsoft" part to attempt to get the public to associate the generic term with Microsoft. I think it would be appropriate if the practice came back to haunt them.

Re:Anyone would do it...

[bpowell423]

No, the argument would be more like this...

The McDonald's Co. opens stores called "McDonald's Restaurant", and gets a trademark on "McDonald's Restaurant". Later, they get a trademark on "Restaurant", and begin calling all their, ahem, restaurants, "Restaurant". Still later, some company calls their restaurant "Lestaurant" and gets sued by McDonald's because it's only one letter different than "Restaurant". Lestaurant turns around and sues McDonald's saying that "Restaurant" is a generic term to start with and that their trademark is invalid.

Now, if you don't like my point, allow me to cut and paste, and replace McDonalds with Microsoft, Restaurant with Windows, etc...

The Microsoft Co. creates a windows product called called "Microsoft Windows", and gets a trademark on "Microsoft Windows". Later, they get a trademark on "Windows", and begin calling all their, ahem, windows products, "Windows". Still later, some company calls their windows product "Lindows" and gets sued by Microsoft because it's only one letter different than "Windows". Lindows turns around and sues Microsoft saying that "Windows" is a generic term to start with and that their trademark is invalid.

Or something like that...

they blew their $$$

[ketan]

From the article:

Microsoft, understandably, says a different principle is at stake. According to its court filings, the company has spent $1.2 billion on marketing and promoting Windows since the first version was announced in 1983 and shipped in 1985. "Our request in this case is simply that Lindows not free-ride on the investments we have made in building Windows into one of the most recognizable brands in the world over the last 20 years," said Jon Murchinson, a spokesman for Microsoft.

Well, just because Microsoft pissed its money away associating themselves with a generic term doesn't mean they should get trademark protection. If I spend millions of dollars on something that isn't mine in the first place (especialy something that is a public trust), I can't make it mine. That principle would imply that anyone could throw enough promotional money around and eventually claim any word of the English language.* They screwed up. I'm not saying they should give up; "Windows" is too valuable to them and they owe it to their shareholders to try to keep it. But they should lose.

* Otherwise I've got dibs on "the"

Funny though...

[MacAndrew]

Lindows IS getting a leg up because of MS "Windows"; they sought the association by choosing the name. Now, because Microsoft went with a term that is both generic and heavily promoted by them, Lindows gets a substantial and probably legal boost.

OK by me, but how tragic for Microsoft. If only they had called it Wacintosh in the first place. :)

BTW, one bright spot: McDonald's Restaurant didn't have a claim against a long-standing McDonald's eatery in an Illinois town, operated by a guy named McDonald. Big McDonald threatened and cajoled little McDonald, and lost. Eventually the McDonald's franchise in town closed, too. So there.