Microsoft settled by paying $20 million for the Lindows name.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
Quote:
On 13 June 2007, Linspire and Microsoft announced an interoperability collaboration agreement with a focus on document format compatibility, instant messaging, digital media, web search, and patent covenants for Linspire customers.[17] This agreement has been criticised, most notably by the Groklaw website[18] for being disingenuously short-lived and limited, and against the spirit of the GNU General Public License. Kevin Carmony, in one of the regular "Linspire Letters," asserted that the agreement would "bring even more choices to desktop Linux users [and] ... offer a "better" Linux experience."
Quote:
In July 2004, Microsoft offered to settle with Lindows.[6] As part of this licensing settlement, Microsoft paid an estimated $20 million US, and Lindows transferred the Lindows trademark to Microsoft and changed their name to Linspire
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
The US District Court in Seattle ruled Wednesday that the jury in the case should "consider whether the Windows mark was generic" before Windows 1.0 entered the marketplace in 1985. It also said that even if the "primary significance" of the term is not generic today - that is, has been displaced by the proprietary use - the trademark is not necessarily valid.
The upshot is that the open-source company can continue using its name for now, but legal hurdles remain. The judge postponed the current March 1 trial date, itself a delayed start, to an unspecified time, pending an appeal from Microsoft. Microsoft has held that only present-day use of "windows" should be considered by the court to assess the current validity of the trademark.
Company spokeswoman Stacy Drake said Microsoft would promptly pursue the appeals opportunity. "We're very encouraged the judge has granted our request to ask the Court of Appeals to provide guidance and clarity on this issue," she said.
Daniel Harris, Lindows' lead trial counsel, said in a statement that the win was a major blow to Microsoft. "The court's ruling confirms that a company, no matter how much money it spends, cannot buy a word out of the English language. These repeated filings by Microsoft are just another attempt to deplete our resources by dragging these legal proceedings on for as long as possible."
Microsoft, which hopes to ban the company from using its Windows-spoofing name, has had some court rulings go in its favour. For example, the Benelux injunction forced Lindows to stop selling or advertising its products, cancel all outstanding orders and stop users in the Netherlands, Luxembourg and Belgium from accessing its site.
As I stated in the beginning of this thread: Amazon better change their name. Nothing about App Store was generic before Apple brought it to prominence.
I agree that Apple has the upper hand. They made "apps" ubiquitous. Before that, there were applications and programs, but apps were barely a nickname.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
Microsoft lost the case about invalidating "Lindows". If they pushed the issue further, they might have lost "Windows."
If you agree to change your name for $20 million dollars, how is that losing or being "silenced"? Microsoft potentially avoids losing their TM of Windows, the lawsuits stop, and both can move on in life.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
It has nothing to do with winning or losing, it has to do with your initial claim to my post regarding Lindows. That, plus the $20M payout and this new info above (that you supplied) is more sufficient evidence to conclude that MS did not feel they had a solid case for their trademark claim. Do you think that Windows was what all GUI-based OSes were called? I don’t, yet I hear the term apps being thrown around for pretty much everything these days. Apple might be beaten by its own success.
If app is generic and not trademarked, and store is the same, how can they simply stick them together and call them unique? It's a simple two word phrase that to me says 'this is a store that sells apps', not 'this is an apple app store'.
Second...can't generic terms be trademarked? The Container Store comes to mind.
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
You think putting app with store makes it unique? OK.
The argument that it will also cause confusion between using itunes/an apple device as the only means to access the app store vs. Amazon Android app store is very weak.
But, this is the same company that justified banning google voice over "confusion" over the dialer.
If app is generic and not trademarked, and store is the same, how can they simply stick them together and call them unique? It's a simple two word phrase that to me says 'this is a store that sells apps', not 'this is an apple app store'.
That isn?t a sound argument. A string of words can be copyrighted and trademarked if they are unique. You can also trademark new uses for a word, like Apple or Amazon. I can make a book company called Apple books and a computer company called Amazon. but I can?t make a CE company called Apple nor an online book company called Amazon without those companies taking issue with it.
They still might take issue with the other setup if the logos make it confusing. Unlike patents that allow owners to sit and wait to maximize their lawsuits, the longer you sit and wait on a potential trademark infringement the less defensive your position becomes. Unfortunately this can mean an aggressive defense of a patent.
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
Unlike patents, trademarks have to be aggressively defended. If you don't like it, blame the legal system. Apple can't *not* defend this if they want to follow through on the "App Store" trademark.
As far as I'm concerned, the App Store trademark is no more ridiculous than Amazon's "One Click" patent.
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
I think you have the foundation for a very strong argument.
So? What about gas station, grocery store, used car lot? All of these terms where at one time "not in general use" and coined by an individual or company, then they became common.
You think putting app with store makes it unique? OK.
Quote:
Originally Posted by Mike Reed
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
Come now, there are thousands of examples of common usage words that are trademarked because of unique usage. Just looking around my kitchen, I see these trademarks:
KitchenAid
Sharp
Hot Point
Profile
General Electric
Foodtown
The Gourmet Weight
I could go on, but I think this makes the point...
None of these words are "unique" infact they are all rather common. Again, no one seriously claims that App Store is something that no one else could have thought of--just that no one was using the term before Apple.
Apple then made it seem obvious--isn't that exactly what trademark protection is for? So someone can't piggyback off of your success?
So? What about gas station, grocery store, used car lot? All of these terms where at one time "not in general use" and coined by an individual or company, then they became common.
If you called them 'ga station', 'gro store', and 'u-car lot', respectively, that would be analogous to what Apple is doing here.
I am not so sure. I think Apple has the much weaker footing here.
Apple pretty much is required to sue Amazon for this though because they have to vigorously defend the trademark. They can't be counter suing Microsoft claiming it's a super important unique trademark and then turn around and say "well, we're cool with Amazon". Even if they lose, they have to do it.
I think Apple?s App Store or iApp Store or Mac App Store would be fine, but simply App Store is too generic to trademark. I think there is evidence that the term predates Apple?s usage, but even if they did popularize it I think that the term has genericized long before they tried to trademark it thus making it impossible to now own.
I think there's a difference between 'app' and 'App'. And, the fact that App also is also homonymous with 'Apple' probably works in Apple's favor.
Comments
They didn't lose their case
Microsoft settled by paying $20 million for the Lindows name.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
On 13 June 2007, Linspire and Microsoft announced an interoperability collaboration agreement with a focus on document format compatibility, instant messaging, digital media, web search, and patent covenants for Linspire customers.[17] This agreement has been criticised, most notably by the Groklaw website[18] for being disingenuously short-lived and limited, and against the spirit of the GNU General Public License. Kevin Carmony, in one of the regular "Linspire Letters," asserted that the agreement would "bring even more choices to desktop Linux users [and] ... offer a "better" Linux experience."
In July 2004, Microsoft offered to settle with Lindows.[6] As part of this licensing settlement, Microsoft paid an estimated $20 million US, and Lindows transferred the Lindows trademark to Microsoft and changed their name to Linspire
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
Ruling: http://www.silicon.com/technology/so...ling-39118328/
The US District Court in Seattle ruled Wednesday that the jury in the case should "consider whether the Windows mark was generic" before Windows 1.0 entered the marketplace in 1985. It also said that even if the "primary significance" of the term is not generic today - that is, has been displaced by the proprietary use - the trademark is not necessarily valid.
The upshot is that the open-source company can continue using its name for now, but legal hurdles remain. The judge postponed the current March 1 trial date, itself a delayed start, to an unspecified time, pending an appeal from Microsoft. Microsoft has held that only present-day use of "windows" should be considered by the court to assess the current validity of the trademark.
Company spokeswoman Stacy Drake said Microsoft would promptly pursue the appeals opportunity. "We're very encouraged the judge has granted our request to ask the Court of Appeals to provide guidance and clarity on this issue," she said.
Daniel Harris, Lindows' lead trial counsel, said in a statement that the win was a major blow to Microsoft. "The court's ruling confirms that a company, no matter how much money it spends, cannot buy a word out of the English language. These repeated filings by Microsoft are just another attempt to deplete our resources by dragging these legal proceedings on for as long as possible."
Microsoft, which hopes to ban the company from using its Windows-spoofing name, has had some court rulings go in its favour. For example, the Benelux injunction forced Lindows to stop selling or advertising its products, cancel all outstanding orders and stop users in the Netherlands, Luxembourg and Belgium from accessing its site.
As I stated in the beginning of this thread: Amazon better change their name. Nothing about App Store was generic before Apple brought it to prominence.
Web apps? Please. They are web sites.
No one sold apps before the iPhone.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
Microsoft lost the case about invalidating "Lindows". If they pushed the issue further, they might have lost "Windows."
If you agree to change your name for $20 million dollars, how is that losing or being "silenced"? Microsoft potentially avoids losing their TM of Windows, the lawsuits stop, and both can move on in life.
They paid the costs of Lindows legal investment and were required to never use the name again, in exchange for Office document format interchange, and patent protection.
Explain again how Microsoft lost? They silenced Linspire by gaining silence in the press with this cross license agreement.
It has nothing to do with winning or losing, it has to do with your initial claim to my post regarding Lindows. That, plus the $20M payout and this new info above (that you supplied) is more sufficient evidence to conclude that MS did not feel they had a solid case for their trademark claim. Do you think that Windows was what all GUI-based OSes were called? I don’t, yet I hear the term apps being thrown around for pretty much everything these days. Apple might be beaten by its own success.
Second...can't generic terms be trademarked? The Container Store comes to mind.
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
You think putting app with store makes it unique? OK.
The argument that it will also cause confusion between using itunes/an apple device as the only means to access the app store vs. Amazon Android app store is very weak.
But, this is the same company that justified banning google voice over "confusion" over the dialer.
If app is generic and not trademarked, and store is the same, how can they simply stick them together and call them unique? It's a simple two word phrase that to me says 'this is a store that sells apps', not 'this is an apple app store'.
That isn?t a sound argument. A string of words can be copyrighted and trademarked if they are unique. You can also trademark new uses for a word, like Apple or Amazon. I can make a book company called Apple books and a computer company called Amazon. but I can?t make a CE company called Apple nor an online book company called Amazon without those companies taking issue with it.
They still might take issue with the other setup if the logos make it confusing. Unlike patents that allow owners to sit and wait to maximize their lawsuits, the longer you sit and wait on a potential trademark infringement the less defensive your position becomes. Unfortunately this can mean an aggressive defense of a patent.
Another way to view this...if Amazon didn't think the term "App Store" had value, they wouldn't use it.
And not particularly relevant a view.
The way I understand it, you can trademark new uses or combinations of generic terms. People who bring up the term "killer app" don't seem to get this. NO ONE thinks that Apple has claim to the term "app." Or "store" for that matter. It is the unique combination of those two common terms that Apple has a shot at. Clearly, they popularized the term "App Store" for a place to buy mobile applications.
The issue gets sticky in the details. Did it become so popular so fast that it became genericized before Apple could cement a trademark?
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
As far as I'm concerned, the App Store trademark is no more ridiculous than Amazon's "One Click" patent.
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
I think you have the foundation for a very strong argument.
So? What about gas station, grocery store, used car lot? All of these terms where at one time "not in general use" and coined by an individual or company, then they became common.
Swing and a miss. Not even close.
You think putting app with store makes it unique? OK.
But if they don't have a trademark on the word 'app', wouldn't it be a strong argument for 'app store' being generic? It would seem to be purely descriptive in plain English at that point - a store that sells apps.
Come now, there are thousands of examples of common usage words that are trademarked because of unique usage. Just looking around my kitchen, I see these trademarks:
KitchenAid
Sharp
Hot Point
Profile
General Electric
Foodtown
The Gourmet Weight
I could go on, but I think this makes the point...
None of these words are "unique" infact they are all rather common. Again, no one seriously claims that App Store is something that no one else could have thought of--just that no one was using the term before Apple.
Apple then made it seem obvious--isn't that exactly what trademark protection is for? So someone can't piggyback off of your success?
So? What about gas station, grocery store, used car lot? All of these terms where at one time "not in general use" and coined by an individual or company, then they became common.
If you called them 'ga station', 'gro store', and 'u-car lot', respectively, that would be analogous to what Apple is doing here.
I am not so sure. I think Apple has the much weaker footing here.
Apple pretty much is required to sue Amazon for this though because they have to vigorously defend the trademark. They can't be counter suing Microsoft claiming it's a super important unique trademark and then turn around and say "well, we're cool with Amazon". Even if they lose, they have to do it.
I think Apple?s App Store or iApp Store or Mac App Store would be fine, but simply App Store is too generic to trademark. I think there is evidence that the term predates Apple?s usage, but even if they did popularize it I think that the term has genericized long before they tried to trademark it thus making it impossible to now own.
I think there's a difference between 'app' and 'App'. And, the fact that App also is also homonymous with 'Apple' probably works in Apple's favor.
I
Second...can't generic terms be trademarked? The Container Store comes to mind.
Excellent point. There are hundreds along those lines.....