February 12th, 2004, 06:24 PM
"windows" is a generic term. MS looses law suit.
This is something that always has puzzled me... "windows" is a dictionary-word, so copyrighting it always seemed to me like risky business.
Read more at eWeeks
Lindows.com on Tuesday won an important early tactical victory against Microsoft in their ongoing trademark dispute. The judge ruled that 'windows' must be considered in its historical user-interface context.
The U.S. District Court in Seattle ruled in favor of Lindows.com's assertion that the jury should consider the historical use of the term 'windows' in graphical user interfaces rather just its current usage as being synonymous with Microsoft Windows.
The court also ruled that after a word is declared generic it would continue to be generic, and thus could not be made a corporate trademark. Chief District Judge John Coughenour said in his Tuesday ruling: "If the term is found to be generic 'it cannot be the subject of trademark protection under any circumstances.'"
In that event, were the jury to find for Lindows because it decided that 'windows' was historically a generic term for computer GUIs, Andris said, "it would appear that Microsoft would be at risk of losing its Windows trademark all together."
"The rulings are a major victory for Lindows.com. Essentially, the Court's ruling confirms that a company, no matter how much money it spends, cannot buy a word out of the English language," said Daniel Harris, Lindows.com's lead trial counsel in a prepared statement.
This could set an interesting precedent, too.
In this case, windows was a word before MicroSoft started using it. But what in other cases?
What about words that weren't originally in the dictionary, but have become a "generic term"? I'm thinking "walkman" (copyrighted by Sony), "CD" (Philips) and the likes here.
Those words are in the dictionary nowadays, and therefore generic, thus not copyrighted anymore?
February 12th, 2004, 06:26 PM
February 12th, 2004, 06:31 PM
February 12th, 2004, 06:33 PM
Copyrighting words is difficult. I hate it, but then how can one protect their intalectual product. For instance what if you went to K-mart and baught a white box labeled "Windows" and got home to find it was some hack software with a "Windows" like interface and didn't run anything that runs on the Microsoft platform. But then again it's a dictionary word and how can you tradmark language? Which brings me to this notion in america that you can trade mark phrases. Like "Where do you want to go today" and thousands of others. That eventually will break down the ability to communicate what your product does and force language into a battle over who owns the right to say "Good Morning America" it's problem and someday we'll be forced to abandon the practice. Negative, have you insight into what the time limit on tradmarks are? Such as Pepsi, I think it's forever....?
February 12th, 2004, 06:47 PM
Actually, the term "copyright" is probably a bad choice of words...
Afaik, one can only copyright intellectual property (books, movies, songs, tutorials, computer software). It's not possible to copyright a name.
So while the Windows software would be protected by copyright (and the general rule there is that copyright lasts for as long as the life of the author plus 70 years), the name itself can't be copyrighted.
From The United States Patent and Trademark Office:
So "Windows" (the name, not the software) would be a trademark, not copyrighted.
- A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
- A copyright protects an original artistic or literary work.
I guess that means that as long as MS keeps on using the name and files the appropriate documents, "windows" would be considered a trademark. That leaves us with the "generic"...
Rights in a federally-registered trademark can last indefinitely if the owner continues to use the mark on or in connection with the goods and/or services in the registration and files all necessary documentation in the USPTO at the appropriate times. In general, the owner of a registration must periodically file:
Affidavits of Continued Use or Excusable Nonuse under 15 U.S.C. §1058; and
Applications for Renewal under 15 U.S.C. §1059
February 12th, 2004, 07:42 PM
This brings an interesting thing to the front, can regular everyday words be copyrighted and should they be. This really puzzels me in the case of the Company Sun. Does this mean that I have to start calling the "sun" that gastrous ball of fire many millions of miles away?
Now this is the question. If I remember my reading correct Lindows is suppose to be a Mix of Windows and Linux in which case, wouldn't M$ still have a case.
This can be rather interesting, I for one will have to look at this case a bit more.
But then Negative that would bring up an interesting point. What about Patenting Words that are normal words. It works for that also. Now I think you might be able to copyright a word. THough I migh be wrong. I haven't read any law books in way to long. I will let you know later on. I have a book around here somewhere.
February 12th, 2004, 07:49 PM
There's nothing like calling a spade 'an earth inverting implement'
55 - I'm fiftyfeckinfive and STILL no wiser,
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February 12th, 2004, 07:51 PM
If Lindows would use pieces of Windows-software, it would be copyright-infringement, no doubt about that. That's not the case though, since this seems to be about trademarks.
Your bringing up of "Sun" is interesting, but I don't think you can go as far with that case as you can go with the "windows" case.
Windows and sun both are in the dictionary, but what is different between the two is that windows has become a generic term in GUIs, while sun isn't a generic term...
Where to draw the line, though...?
February 12th, 2004, 08:01 PM
The issue of a Trademark is different to copyrighting or patenting. One can Trademark a great deal of things that seem to be normal words. Once trademarked use of the word or phrase by others for commercial gain is not allowed.
I believe that you will find that it is not "Windows" that is trademarked but rather "Microsoft Windows". That being the case they have avoided trying to trademark and everyday word. In the case against Lindows I believe what Microsoft is arguing is that since the trademark was granted the more generic "Windows" has become a reflection of their product in normal life, (a lot like Hoover has taken the place of the phrase vacuum cleaner to many people). That being the case Lindows is sailing very close to being in trademark infringement since the law prohibits "mimicing" of a trademark. They went after that canadian programmer recently called Mark Rowe because he registered, ran and intended commercial gain from the domain mikerowesoft.com
While I don't think Lindows satnds to gain a whole lot other than "na-na-na-na rights" by naming their product this way I do understand why Microsoft wants to keep as big of a "clear zone" around the name as they possibly can to avoid fuzzying the line between them and others in the future.
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\"A nation that draws too broad a difference between its scholars and its warriors will have its thinking done by cowards, and its fighting done by fools.\" - Thucydides
February 12th, 2004, 08:03 PM
Good point, I would like to see where they draw the line on this case. I have no doubt that what ever line is drawn will probably be appealed.
That is something that I can definately see happening. Now what would be really interesting is how far are they going to go with other things.
Now what I want to know is just how much they are going to spend on a case that is simply over, (Excuse my language.) who's dick is bigger. This is clearly M$ trying to say that we control everything and in this case they are going up against someone that actually has some money and can give a good fight. (For those of you that don't know Walmart owns Lindows)