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Windows Name Is Challenged

By conradguerrero · 17 replies
Dec 31, 2002
  1. At issue is the level of legal protection that should, or should not, be accorded to an ordinary word that Microsoft adopted as its own: windows.

    Find the whole article here.


    the link doesn't work anymore, scroll down to see the whole article.
  2. vassil3427

    vassil3427 TS Rookie Posts: 640

    That link is useless, it just takes you to a sign in for the NY Times:(
  3. MrGaribaldi

    MrGaribaldi TechSpot Ambassador Posts: 2,512

    Well, registration is free... And there are quite a few interesting reads on NY TImes, so I'd recommend getting a free account :)
  4. vassil3427

    vassil3427 TS Rookie Posts: 640

    Oh Ok:p
  5. conradguerrero

    conradguerrero TS Rookie Topic Starter Posts: 310

    Here is the whole article:
    December 30, 2002
    Glass Panes and Software: Windows Name Is Challenged

    here is no question that Microsoft Windows, the name of the dominant personal computer operating system, is one of the leading brands in the world. Today, Windows is the face of computing for nearly 400 million people worldwide — the software that determines the look and basic operations of more than 90 percent of all PC's.

    But success, money and monopoly, it seems, do not put even so familiar a name as Microsoft Windows beyond challenge. An upstart company, Lindows.com, is trying to persuade the Federal District Court in Seattle to invalidate Microsoft's trademark on Windows.

    At issue is the level of legal protection that should, or should not, be accorded to an ordinary word that Microsoft adopted as its own: windows.

    The litigation so far — a mounting pile of evidence and briefs — provides a detailed narrative of the origins and rise of a mega-brand, and a primer on trademark law. And an order by Judge John C. Coughenour, refusing Microsoft's plea for a temporary injunction against Lindows.com, suggests that Microsoft has a fight on its hands against a feisty start-up with fewer than 50 employees.

    In January, Judge Coughenour is expected to decide on Lindows.com's motion for a summary judgment — a ruling from the bench — that the Windows trademark should be revoked. But that is a long shot. Both sides are preparing for a trial that is scheduled to begin in Seattle on April 7, when a jury is expected to begin weighing whether Lindows is an illegal copycat brand and whether Microsoft's trademark on Windows should be taken away.

    Lindows.com is defending a broad principle, its lawyer says. "No company, no matter how powerful, no matter how much money it has spent, should be able to gain a commercial monopoly on words in the English language," said the lawyer, Daniel Harris, a partner at Clifford Chance.

    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.

    Microsoft started the legal spat. It filed a complaint against Lindows .com last December claiming trademark infringement, trademark dilution and unfair competition. That was five months after Lindows.com was founded and before it had a product on the market.

    Lindows.com's stated intention is to market desktop operating software based on Linux, an operating system, distributed free, whose basic code is written and debugged by a volunteer community of programmers. To date, Linux has done well as an operating system for the server computers that run corporate networks and the Internet. But it has made scant progress in loosening Microsoft's grip on the market for PC operating systems, where Microsoft enjoys a monopoly.

    Microsoft filed its trademark suit against Lindows.com, saying it was using a copycat name, and then asked the court for a preliminary injunction to halt quickly what it deemed an illegal practice by an emerging rival.

    Nonsense, Lindows.com replied. "Windows" is a generic term, it said, first used more than two decades ago for software systems that could display programs or data in rectangular windows on PC screens. Lindows .com submitted declarations from expert witnesses and trade press articles from the 1980's, when several software companies were offering desktop environments. They spoke of the "window wars" of those years and had headlines like "Microsoft Does Windows."

    In his order last March, Judge Coughenour denied Microsoft's request for a preliminary injunction in a 29-page order indicating that the little-known defendant had scored some points.

    "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." G.U.I. stands for graphical user interface, the system that lets people navigate by using on-screen icons and a mouse to point and click.

    Lindows.com was emboldened. It sued to invalidate Microsoft's trademark on Windows in October and asked for a summary judgment. "After Microsoft tried to get the court to shut us down and failed, we're fighting back," said Michael Robertson, the founder and chief executive of Lindows.com. "They lobbed a grenade into our office, and we just lobbed it back."

    Mr. Robertson, who is 35, is well aware of the commercial value of association with a familiar name, and he is no stranger to lawsuits. He was the chief executive and a founder of MP3.com, a music-sharing service on the Web named for the popular software format for sharing audio files. MP3.com was sued by major record companies, including Universal, Warner, EMI and Sony, for copyright infringement.

    Mr. Robertson sold MP3.com to Vivendi for $372 million in cash and stock in May 2001. The MP3.com experience, he says, was good training for taking on Microsoft.

    Microsoft sees a pattern in Mr. Robertson's past, regarding him as a serial opportunist who is trying to exploit the intellectual property rights of others once again.

    Microsoft observes in a filing that the courts have typically slapped down copycat brands selected by newcomers: Prozac won legal protection from Herbrozac in antidepressant drugs, Apple prevailed over Pineapple in computers, and Huggies successfully challenged Dougies in diapers.

    The Lindows.com side replies that Prozac, Apple and Huggies were names made up by Eli Lilly, Apple Computer and Kimberly-Clark. Trademark law affords the greatest protection to words that are fanciful or arbitrary, like Apple. Next in line for legal protection are names that are suggestive of what a product does, like Huggies. Next comes a descriptive term, which describes an attribute of a product, and last come names that are generic, or widely understood to mean a category of products. Generic terms cannot be trademarked.

    The legal fault line in this case lies between descriptive and generic. Microsoft's argument, in essence, is that Windows is a term for the window feature of the company's product that, by dint of Microsoft's huge investment, has acquired a powerful "secondary meaning." In a court filing last month, Microsoft submitted as evidence a 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.

    In written testimony last month, Bill Gates, Microsoft's chairman, asserted that while Windows enabled the display of on-screen windows, its ambitions were much larger. Mr. Gates said that unlike most competing products in the early 1980's, which were simple window systems, Windows is a layer of software between an operating system and an application like a word processor. As such, he added, the Windows layer has allowed outside software developers to write all kinds of applications that run on Windows.

    In the early 1980's, "Windows represented a new kind of product for personal computers," Mr. Gates wrote. "It was not part of any existing product category."

    Developers of products like Microware Windows — graphical window software that preceded Microsoft's entry — may take issue with Mr. Gates's claim. But his testimony is the basis for Microsoft's assertion that the company was not using the term in a generic way when it came up with the Windows name in 1983.

    The single person most responsible for Microsoft's selecting the name Windows, according to court documents, was Rowland Hanson, a marketer who came from Neutrogena, the soap and cosmetics maker. Until Mr. Hanson arrived in May 1983, the new software was called Interface Manager, which the programmers liked.

    Understandably, Mr. Hanson scrambled for an alternative. He had scant knowledge of computers at the time. "I recall that windowing or something like that had been used by somebody," Mr. Hanson said in deposition testimony, "and that's what triggered me to think about it as windows. . . . I looked at our product, and ours was clearly, had windows on the screen."

    So Microsoft Windows it was.

    The rise of the Windows brand came slowly, and Microsoft's efforts to win a trademark for the product were rebuffed by the United States Patent and Trademark Office until 1995, the court records show. In rejecting the company's application to register Windows in 1993, the agency found that the word was "a generic designation for the applicant's goods" and that "no amount of evidence of de facto secondary meaning" could justify trademark status.

    In the 1993 deliberation, Borland International, a software maker that had trademark applications pending on products containing the word "windows," filed a letter protesting Microsoft's application. Later that year, according to court records, Microsoft purchased Borland's pending trademark applications for $1 million.

    Microsoft then renewed its efforts unopposed, and in early 1995 the trademark office approved the registration of the Windows trademark. The 1995 approval, Judge Coughenour noted in his order, was rendered "with no analysis or explanation for its reversal of the original decision to refuse registration."

    The historical record, according to Lindows.com, supports its countersuit against Microsoft.

    continued on next post ...
  6. conradguerrero

    conradguerrero TS Rookie Topic Starter Posts: 310

    If Microsoft lost its trademark on Windows, what difference would it make now? Legally protected or not, the Microsoft Windows brand is firmly entrenched, a monopoly in people's minds, it seems.

    Still, a loss of trademark would open the door to an uppity PC maker or AOL that wanted to use the Windows name. Imagine "H-P Windows," " I.B.M. Windows," "Dell Windows" or "AOL Windows." Most likely, Mr. Robertson speculated, a big-brand alternative would be based on Linux, like Lindows.com. "It's not out of the realm of possibility at all," he said.

    Today, any such Linux-based alternative would probably pose a more imminent threat to Mr. Robertson's company than to Microsoft. No matter, said Mr. Robertson, who portrays his David-versus-Goliath adventure as a quest for greater competition in the economy. People, he said, are always complaining about Microsoft. "But if you want to do something about Microsoft, go give them some competition," he said. "I'm young, I'm rich and I can do it."
  7. Vehementi

    Vehementi TechSpot Paladin Posts: 2,704

    That was a very interesting article - but I'm gonna have to side with Microsoft on this one. I believe Windows is both a generic term and a trademark - it should not be able to be used by another company, like "Dell Windows, AOL Windows, etc.", and not copycatted like Lindows. It should be able to be used by anyone in descriptions though - using the term 'window' in a GUI I mean.

    Other companies have adopted generic terms for trademarks before - like Volkswagen's "Beetle" and such. I don't see why MS can't.

  8. vassil3427

    vassil3427 TS Rookie Posts: 640

    Well Veh its all about $$$$, the fact is other company's see that everybody knows, and buys windows, so if they could strip them of the name, they might have a chance at selling more stuff, and making more money, I dont really know which way to go on this, because I do feel Microsoft has an unfair advantage over any other OS creator, I mean you can buy cellular phones with Microsoft Windows Phone Edition on them....Windows is everywhere, and no one else really has much of a chance at home users......
  9. Vehementi

    Vehementi TechSpot Paladin Posts: 2,704

    Yeah, I don't think anyone should be able to profit on another company's long established reputation. I don't care if it's a monopoly or whatever.
  10. vassil3427

    vassil3427 TS Rookie Posts: 640

    Oh well perfectly understood, but do you think its right to have a monopoly? I do not......
  11. Vehementi

    Vehementi TechSpot Paladin Posts: 2,704

    No I do not, vassil. If Windows had healthy competition, it would be at a whole nother level in every area of operating systems. Microsoft has noone that they need to have an edge against, they don't have anyone that can compete. It's terrible.
  12. vassil3427

    vassil3427 TS Rookie Posts: 640

    yeah it is pretty sad, just think of how much better Windows could be if MS was forced to push through new better programming methods to stay up against competetition....instead they get to release it when they feel good and ready too:(
  13. MrGaribaldi

    MrGaribaldi TechSpot Ambassador Posts: 2,512

    Well, I disagree... Since it's such a common thing in a GUI MS shouldn't be allowed to keep it as a trademark... (They shouldn't have gotten it in the first place... )
    All operating systems have windows (with the exception of commandlines os'), and therefor I can't see any reason why MS should be the only one to be able to use it (be it in description or name)...

    And I don't think that they should be allowed to keep Windows as a trademark, since they've spent so much money on promoting it.....
    They did that even before they had it as a trademark......
  14. StormBringer

    StormBringer TS Rookie Posts: 2,244

    I can remember a few years ago when quite a few people thought that MS made Winamp, winRar, Winzip and several other apps beginning with Win. Sure almost all these people were technologically challenged and barely knew anything about computers and software, but aren't those ther people who are targeted by most marketing?
  15. Rick

    Rick TechSpot Staff Posts: 4,572   +65

    Lindows and Windows are clearly two different products. They do not sound the same and are not spelled the same.. Sounding "similar" should not be a legal issue. There are plenty of companies out there than have names that rhyme... I mean, geez.. ;)

    You don't see Microtec/Microtek or Maxtop/Maxtor and countless other companies with simliar names whining about this.

    If the consumer doesn't know the difference between L and W, then the consumer really is to blame. :(
  16. Nick

    Nick TS Rookie Posts: 185

    What in god's name does Bill Gates need more money for? That would be horrible if you saw "HP-Windows and Dell windows."
  17. iss

    iss TechSpot Chancellor Posts: 1,994

    even if M$ lost the trademark "windows" in the minds of the public windows is microsoft so its not about losing identity. bottom line is this is just another attempt by M$ to stifle any kind of competition by any means at it's disposal.

    what they ought to do is launch and investigation of how M$ ended up receiving its trademark after being refused ( with reasons given) and then ended up getting it after buying off borland and then receiving it without any reason givin for the reversal.
  18. Vehementi

    Vehementi TechSpot Paladin Posts: 2,704

    The fact that both Lindows and Windows are the same exact product, a computer operating system, and are built similarly is the deciding factor.

    Yes but Lindows was invented deliberately to sound like Windows, which is a whole nother issue. "Winux" wouldn't be so bad as the rhyming thing, but that just sounds awful...

    Competition is not taking another's name and changing a letter to imitate them to sell the same product off of that original products reputation, that's cheating for lack of a legal term.

    Actually I think it's just an attempt by one company to protect the long-established reputation they have made with making operating systems against another company that hopes to be a tagalong, a wannabe, heck even a parasite, if you will. Lindows is just trying to make money off the Windows name, and that's all there is to it. With the intelligence of people today, it's very easy to trick a customer into buying "Lindows" instead of "Windows". Perhaps they heard some people talking about Windows, and that person didn't know anything about computers, and maybe they were about to get one. And went to their nearest computer store to check it out, saw Lindows, and mistaked it for what they were talking about. Or they saw that Lindows was cheaper and bought that instead of Windows. No, they shouldn't do it.
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