[Sussex] lin---s.com

[Geoff Teale]

On Wed, 2004-02-18 at 08:00 -0500, Jon Fautley wrote:
> If the company went out to intentionally 'steal' business from me, and 
> tried to use my name to sell it's product, i.e. getting an Audi, 
> removing the badge, and sticking a BMW badge on it, then selling it as a 
> BMW, then yes, i'd be upset.

This is fraud, and altogether different offence (a criminal one for a
start).  However, if I marketed a new car, that looked just like a BMW
and called it a BNW then we'd be in the right territory.

> However, that doesn't seem to be what Lindows is doing. It's called 
> Lindows beacuse it's a crossover of Windows and Linux... Lindows and 
> Windows are two different products, with two different marketplaces, 
> with two different names. 

Jon, this is not what has happened at all.  Microsoft have established
in a court of law that Lindows deliberately set out to use a variant of
the name of Microsoft's product in order to garner attention based on
Microsoft's reputation and standing.  Lindows derived profit at the
expense of Microsoft.  Microsoft can thus legitimately claim to have
suffered damage as a result of Lindows deliberate actions against them.
Moreover they can show that Lindows deliberately abused their trademark,
questioned their goodwill (with out basis) and thus decreased the value
of that considerable asset.

There is no case for accidental harm here.

The court in ruling that Lindows should not be allowed to continue
causing them said harm is doing explicitly what any sane human being
would expect them to do.

The argument that Lindows is in a different marketplace is frankly utter
crud, and as this case is not fraud but a civil C&D action the fact that
the names are subtly different is irrelevant.

Other examples of such actions include the mid 80's case in which CBS/
Fender successfully stopped Tokai from producing guitars with a logo
that was similar (but subtly different) to the "spaghetti" logo used on
Fender guitars and a very similar headstock.

>Why do Microsoft not go and sue OpenOffice... 
> I mean, it's an office suite, it's got office in the name.. my god! 
> people will get so confused!

No, because Office is a description of an intended use, as you will see 
the actual trademark is "Microsoft Office".  Now if open office had a 
component called "Excel" or "XL" then you'd have a case...  I know there 
is an argument that Windows somehow describes the function of the
software in questions as well, but that is not only fundamentally flawed
in it's scope, but also ignoring that a trademark has been granted (and is 
respected in the USA, EU, etc, no matter where it was granted as per the
Berne convention,).

It is very important that we don't all jump on the bandwagon and defend 
Lindows here - if we feel it is important that Microsoft behave within 
the law then we should be accepting that they to can avail themselves of 
that same mechanism.  The law in question stops Microsoft calling 
"Explorer" by the name "Finder" in the same way it stops me trading as "4ait" 
unless I can prove that I really do have a good reason to do so.
-- 
Geoff Teale
Cmed Technology <gteale at cmedltd.com>
Free Software Foundation <tealeg at members.fsf.org>