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Tuesday, 25 May 2004

LINDOWS 2: MICROSOFT 0

The Lindows saga rolls on as the Register reports that Microsoft has been refused permission in America to appeal against an unfavourable decision. Therefore, the case will proceed to the district court in Seattle in the second half of this year. The most recent appeal confirms the lower court’s decision that, in deciding whether WINDOWS is generic, the court should look at the perceptions of consumers in 1985, when Microsoft Windows first became available to consumers, rather what it meant to consumers today. Lindows has stopped using the name Lindows during the trial but the case continues nonetheless.

The IPKat is rather surprised by this approach. Whatever the situation was in 1985, today consumers expect WINDOWS to be connected to Microsoft and they may well suffer deception if this present connection is not recognised and protected.

More threatened windows here, here and here

9 comments:

Anonymous said...

Isn't this correct when challenging the original registration of the mark: that it may not have met the criteria at date of registration. If Lindows can have the mark removed for being invalid, presumably it makes a tougher case for Microsoft as they need to rely upon something other than registered rights.

Scott said...

I agree with the first poster. The question is not does everyone now associate the word Windows with MS (obviously they do). It is more whether the TM should have been granted in the first place (it shouldn't) for what was a generic term, and for something that was a recognised term in the computer world too for a specific user interface before MS made it their own. The first issue of "Macworld" from 1984, noted, "When you want to look at the information that one of the icons represents [on screen], you open a window ... Choose the Open command from the File menu and the screen almost fills up with a rectangular 'window' containing icons that represent the documents and programs on the disk." Microsoft's delaying tactics thus far - in a case they instigated - demostrates they know this is one they can loose.

Jeremy said...

Trade Mark Directive 89/104, Art.3(3) has a sting in its tail, since it permits EU Member States to provide that a wrongly granted trade mark may remain on the register where it has subsequently acquired distinctiveness after its application date. The UK has exercised this option: see Trade Marks Act 1994, s.47(1). This is a very sensible provision. No consumer is likely to benefit if a trade mark, wrongly granted in 1985, is cancelled in 2004, many years after it has attained distinctive character. Nor are the trade mark holders' competitors likely to benefit, since they will still be prevented from using confusingly similar marks by the law of passing off/unfair competition.

Anonymous said...

But isn't this a little unfair in some ways? The TM owner obtained the mark invalidly, and in doing so gains a strong legally-distinctive weapon backed up by TM law that prevents anyone else going near, thus providing a springboard for acquired distinctiveness. This could create some difficult circumstances on the facts in a case like this.

Anonymous said...

I probably didn't make it clear: it seems fair that the mark may now have acquired distinctiveness so can remain on the register _if it satisfies the criteria_ (arguably it should be retested in light of a finding that the initial registration was invalid). The main issue is that in the intervening period since registration at the time of disputed use of the other mark, is it fair that the facts of the case are decided upon TM law when it was found originally invalid. By moving the procedings to passing off /unfair competition, different thresholds and other issues come into play which may result in different outcome.

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