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Lindows vs. Microsoft -- What's Generic?
Posted by Paul Szynol on Wednesday, January 01 @ 06:53:05 EST Trademark
The New York Times has published a solid summary of the past and impending Lindows/Microsoft litigation (Glass Panes and Software: Windows Name Is Challenged).

The litigation essentially hangs on the generic mark doctrine. In the trademark world, a term is generic if it describes a class of goods or services, rather than a specific instance of the good or service (the class/instance distinction in object oriented programming languages provides an intuitive parallel). Generic terms can't be trademarked for the simple reason that, if they were, customers would not be able to distinguish a particular product by a specific merchant from the same type of good or service offered by another merchant. If the word "car" were a trademark for an automobile company, for instance, and I offered to sell you my car, what would I be selling you--an automobile in the general sense, or a specific type of automobile? It'd be difficult for you to make that determination; hence the restriction. Following the same logic, I couldn't receive trademark protection for an OS called, conveniently, "Operating System".

In this case, Lindows claims that "windows" is a generic term, since the word was originally used to describe generic GUI architecture (on-screen windows), rather than Microsoft's particular flavor of the interface. If the court agrees with this argument, Lindows not only will not be guilty of infringement or dilution, but Microsoft will not have an exclusive right to the use of "Windows".

In response, Microsoft can argue that "Windows" -- the product -- is more than just an interface; or the company can claim that continuous and exclusive use of the term has given it a "secondary meaning" which customers identify with the product, rather than a category of service. Indeed, with regard to descriptive terms (e.g., "unstable"), the Lanham Act specifies that prolonged and exclusive use of a term by a company can be construed as prima facie evidence of the existence of a secondary meaning. Perhaps similar logic can be transplated to generic terms.

In any case, Microsoft's original motion for a preliminary injunction was denied, so evidently the court thinks Lindow's claim might be colorable. The trial is scheduled to begin in April.

 
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Re: Lindows vs. Microsoft -- What's Generic? (Score: 1)
by TheTibetanTraveller on Wednesday, January 01 @ 11:14:40 EST
(User Info | Send a Message) http://www.aufait.net/~garnet
Microsoft's biggest hurdle is going to be arguing around the USPTO's 1993 rejection of the Windows mark.
the term Windows is widely used, both by the public consumers, and the relevant industry, to name a class of goods or a type of software, that is, a genus of goods, referred to as windows programs or windowing software. The term Windows was in existence and known prior to adoption by the applicant. Since the term is a generic designation for the applicant's goods, then, no amount of evidence of de facto secondary meaning can render the term registrable.
I haven't seen any compeling arguement from MS demonstrating that this was an erronous ruling. In fact, their own dictionary of computer terms treated it as a generic term. Microsoft's main arguement seems to be that they bought it out of "genericness" with their huge marketing budget.


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Re: Lindows vs. Microsoft -- What's Generic? (Score: 0)
by Anonymous on Wednesday, January 01 @ 18:01:29 EST
I think the term 'windows' is too generic and general to be patented and held onto sucessfully. The term windows has been used since the earlier days of UNIX to describe windowing systems.

MS should however have a valid trademark on the phrases MS Windows and Microsoft Windows, since these phrases include the word Mircrosoft or an abreviation of it.


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