Your analogy isn't a valid one...
Apr 14, 2004
6:39 AM EST
|Let's try a better one...
Suppose Delta Airlines tried to trademark the word "airline" so no one else could use it, but the trademark office said no because it's a generic term being used by lots of other companies. Suppose Delta then proceeds to pay off dozens of other airlines, (Southwest, American, United, etc.) to not object to them trademarking the word "airline," and after a couple more attempts, and dozens of pay offs, the trademark office lets their filing slip through. Now, suppose later on a new company wants to start XYZ Airlines, but Delta objects and sues them.
That's what happened in Microsoft's case.
You can't trademark a generic term from your industry. That's why book resellers can't trade mark words such as "book" and not let anyone else use that term.
The term "windows" is a generic term. It existed not only as a computer term long before Microsoft, but there were dozens of companies with windowing products. Microsoft basically purchased a word out of the dictionary, something that no one else can do. You can't. I can't. Why does Microsoft get away with this.
They get away with it because of their money. It's just not right.
Adobe, Macromedia, Intuit, Intel, etc. are all valid and rightfully owned and obtained trademarks (they weren't generic words). I'm sure Lindows would never have called their product Ladobe, Lacromedia, Lintuit, or Lintel. But the word "windows" was stolen right out of the dictionary so that no other computer company can use the term. (Try explaining to someone how to use a Mac without using the word "window," such as open a window, drag the window, minimize the window, etc.) Because the term is so generic and widely used in the computer industry, dozens and dozens of products actually DO use the word windows in their name in some fashion, but Microsoft has never objected, probably because they knew they were on shaky ground. But, when a Linux company tried to use it, they unleashed an army of lawyers and law suits.
Microsoft will continue to get away with things like trademarking generic terms if no one stands up to them. Lindows changed their name to Linspire as a strategy, but they will still continue their case, and Microsoft can't run from the US courts forever. Eventually they'll run out of appeals and hopefully the word windows will be given back to the computer industry, where it belongs, free to be used by all.
I'm sure if Microsoft took some GPL code and tried to say no one else can use it, people would object. This is not unlike that. They've taken something that belonged to all, and made it their own, and I'm glad Lindows isn't sitting by and watching that happen.
Apr 14, 2004
7:09 AM EST
|Your analogy is a good one, but alas it is invalid in this situation. Your premise is that because the term "windows" should not be trademarkable, we should be able to use it as we please. Following your idea to its logical conclusion, we should not have to follow any law that we disagree with. If we think that patents are evil, then nothing should stop us from going ahead and stealing other people's patented work because, after all, according to our interpretation of the law, their patent is invalid.
Real-life, however, does not work that way. Whether we agree with it or not, laws are in place and we must follow them. Like it or not (and, by the way, I AGREE with you that windows should be untrademarkable), MS does own the trademark for Windows, and we have to obey that until such time as the trademark is revoked.
If we go around and steal anyone's legally-obtained trademark, then why should we expect people to respect us?
Furthermore, Lindows has always used their name not in the generic sense, but as a specific leverage against Microsoft's brand. They intentionally named their product "Lindows" as a sound-alike product to Windows. They even marketed it as a replacement for MS Windows!
It's like naming a search engine "Doodle" and making it look and feel like Google - you simply shouldn't do that. It confuses consumers (which, obviously, is the intention of those people who do business this way) and it dilutes the brand of the victim trademark holder.
I like Lindows and appreciate that they have made some real contributions to the Linux community, but I cannot condone their actions and I hope that it does not create an example that others will follow. It's hard enough to protect the image of the Linux community in the eyes of the corporate world as it is!
Apr 15, 2004
4:04 AM EST
|Actually, Dave, you're off track with this one. Bad "laws" are aften changed only by violating them and subsequently seeing that challenge through in court, which is what is happening in the Lindows case. If we all followed your requirements we'd still be living with legally mandated segregation, (much more) limited free speech rights, etc. While choosing the name Lindows may sound cheesy and is akin to poking the bear with a stick, we should all support Lindows in their quest to right this wrong. Many think, and I tend to agree, that the patent system is due for some major overhaul. This Windows/Lindows dispute is just one more example of a poorly designed/executed IP system in the U.S.|
Apr 15, 2004
5:14 AM EST
|Rob I think this is a difference of ethics and morals, which are unique to each person.
I understand the concept of civil disobedience in order to get laws changed, but I disagree with the method. Intentionally breaking a law with the goal in mind to get the law struck down is wrong in my mind. I don't like that there are millions of white-tail deer in Kerr County, Texas who eat my wife's flowers all the time. I disagree that the government only lets us shoot 5 per year. Should I go out and kill 50 or 100, in order to force a court case? No - not me.
There are other channels (which, admittedly, will take longer) through which you can accomplish that.
But, like I said, everyone has their own unique moral code... In this circumstance, I am projecting my morals out there and showing that by being affiliated with Lindows (who is affiliated with Linux and thus me) I am sharing in what they are doing.
Apr 15, 2004
3:39 PM EST
|Actually, Dave, I'm not sure what other channels might be available to challenge whether or not MS should have been allowed a trademark on the name Windows. Perhaps you're troubled by the fact that it appears that Lindows really IS trying to gain advantage from a name that could be confused with MS Windows and that Michael Robertson was really trying to use Lindows as a marketing ploy. I'm not sure that conclusion is entirely correct. Of all of the companies to "play" how realistic is it to expect that MS (a) wouldn't notice, and (b) wouldn't respond as they actually did? Being an attorney myself, I can tell you that the last thing a business needs, particularly a new business, is a complex legal fight with a cash rich foe. I can't say for certain, but as an economist (my preferred vocation) I can assert that the cost of fighting MS in court(s) - a high probability event - weighed against the marketing advantage - a much lower probably event, wouldn't be worth it.
A side note - I don't agree with your assertion that this involves ethics or morals. Resorting to such an argument could be construed as rather offensive. Like saying, well I wouldn't do something you would because of my morals and ethics, which make me morally superior and more ethically pure than you. After all, morals, by definition involve a judgment on the "goodness" or "badness" of an action. While ethics are concerned with "principles of right conduct" (according to dictionary.com). It appears to me that what you have really said is that you do not agree with Lindows conduct irregardless of any circumstances. I, on the other hand, having worked for some time in the legal profession would disagree based upon my understanding of the mechanics of the legal system.
Apr 16, 2004
8:53 AM EST
Linspire is SO much better than Lindows as a name. I bet microsoft are kicking themselves.
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