[Am-info] "windows" trademark owned by Microsoft? Baloney

[Gene Gaines]

The savages at Microsoft have gone too far in attempting to
destroy Lindows, and additionally in attempting to use SCO to
destroy Linux.

Let's take a look at the Lindows issue.

Using the term "windows" in a generic sense in the field of
computing OF COURSE predated the first use by Microsoft.

Thanks to the good people at the Lindows, as a result of the
legal attacks by Microsoft both in the U.S. and abroad, a U.S.
court is beginning to recognize at least some of the reality of
the history of computing as it relates to displays -- and the
whole GUI and Personal Computer development and the extent to
which generic terms such as windows, word, etc. have been taken
over by Microsoft.

The fact remains those are GENERIC terms, used in the personal
computing field and to describe the same functions that
Microsoft now claims to own.  Baloney.  Only a fool or a
Microsoft-paid lawyer who has no regard for honorable behavior
could pursue those claims.

So.  There is progress.  Take a second and look at some of the
documents in the Lindows court case, links below, and further
below I will quote some relevant text from the Lindows (now
forced to change their name to Linspire) web page.

What to do?  Why are we taking time to read this email list?

If we, as individuals and as a group cannot take some position
on this issue, then I think we should shut down this list.

HEAR YE HEAR YE:  If anyone on this list believes that
Microsoft's actions in this matter in any way legitimate or
ethical, PLEASE LET US KNOW. If you are afraid to disclose your
email address publicly, send me a private email and I will
forward your comments to the list without your email address,
and if you wish without your name.

http://info.linspire.com/lindows/

http://info.linspire.com/lindows/dvorak.pdf

This text from the web site:

Select Quotes from Judges Order
 ------------------------------

Page 3 In response to the success of windows-based computer
       graphics, Microsoft launched its own project in the early 1980s
       to develop a GUI with a windowing feature that would work with
       its MS-DOS operating system.

Page 4 It is undisputed that several other companies had
       developed interfaces with an overlapping windows feature
       prior to the release of Windows 1.0 in 1985.

Page 4 The USPTO's February 17, 1993 Final Action stated that
       '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.'

Page 9 It seems logical that to the extent terms including
       'windowing' and 'window' refer to the genus of graphical
       operating environments, such terms would be relevant to a
       determination of whether Windows is generic.

Page 10 No amount of proof that a term has acquired secondary
       meaning associating the term with a particular producer
       can transform that generic term into a trademark.

Page 18 Lindows.com has presented a significant amount of
       evidence that the relevant consuming public (all owners
       and users of Intel-compatible computers) in the early
       1980s considered 'windows' and its derivatives to
       constitute generic terms for graphical operating
       environments, the category of products that included
       Windows 1.0. Microsoft has offered its own evidence
       indicating the opposite. The parties' evidence
       demonstrates that there is a genuine issue of material
       fact regarding the genericness of the Windows mark.


Lindows.com Files Reply Memorandum in Support of its motion
for Summary Judgment on Genericness
 ----------------------------------------------------------
December 2, 2002

In spite of the earlier favorable rulings, we are still
entangled with Microsoft over our company name. We just filed
more court papers which we wanted to share with you. Our hope is
that we will receive a favorable ruling so that we can move
beyond court battles and stay 100% focused on bringing choice to
the desktop. Below you'll find excerpts from our latest papers
along with a link to the entire text.


Select Quotes from Reply Memorandum for
Summary Judgment filed by Lindows.com
 --------------------------------------
Page 1  While the amount of paper has increased, the substance
        remains the same. ...Lindows.com presented ... strong
        evidence establishing the generic use of the terms
        "windows" and "windowing" during the time Microsoft first
        began using them in 1983 and 1984.

Page 2  Despite clear and binding Ninth Circuit precedent,
        Microsoft first attempts to reargue the well-settled
        concept that a generic mark "is not protectable even if
        it has acquired distinctiveness or secondary meaning."
        ... Microsoft asserts that the noun "windows" is
        distinct from the adjectives "window" or "windowing".

Page 3  [Microsoft]... now argues that Microsoft Windows 1.0 was
        an "operating environment," not a "windowing
        environment." ... documents belatedly produced by
        Microsoft one day after Lindows.com filed its motion
        papers reveal that Microsoft, from 1990 to 1994,
        continued to use the term "windowing environments' to
        poll consumers...

Page 4  Microsoft's theory that one can, with enough time and
        money, purchase the exclusive rights to any generic
        word, is wholly unsupportable.

Page 5  The law is clear. Even with Microsoft's oft-cited $1.2
        billion marketing investment, it cannot assert rights to
        a term that was generic when Microsoft began using it.

Page 6  Once again, as this Court as already ruled twice, such
        grammatical hair-splitting is not supported by the case
        law.

Page 7  Lindows.com submitted 36 separate dictionaries each of
        which provide generic definitions of "windows,"
        "windowing," and derivatives.

Page 8  Although Microsoft conceded that all five successive
        editions of its Microsoft Computer Dictionary, published
        in 1991, 1994, 1997, 1999 and 2002, define "windowing
        environment" generically as a category of products that
        includes Microsoft Windows, it argues that these are
        merely "trade dictionaries that [shed] no particular
        light on consumers' perception of a term.

Page 9  The mountain of articles and other documents submitted
        in support of the summary judgment motion in opposition
        to Microsoft's preliminary injunction motion rises well
        above the amount of evidence on which other courts have
        relied to grant summary judgment on the issue of
        genericness.

Page 14  As the Court as already ruled, "Lindows.com has met its
         burden of proof in rebutting the validity of the Windows
         trademark and the 'presumption' drops out of the case,'
         " March 15, 2002. As a result, the burden shifts to
         Microsoft to produce "significant probative evidence' to
         support its complaint.


Gene Gaines
gene.gaines@gainesgroup.com
Sterling, Virginia