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MS Windows Trademark Challenged!
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In the early 1980's, "Windows represented a new kind of product for personal computers," Mr. Gates wrote. "It was not part of any existing product category."
Developers of products like Microware Windows — graphical window software that preceded Microsoft's entry — may take issue with Mr. Gates's claim. But his testimony is the basis for Microsoft's assertion that the company was not using the term in a generic way when it came up with the Windows name in 1983.
The single person most responsible for Microsoft's selecting the name Windows, according to court documents, was Rowland Hanson, a marketer who came from Neutrogena, the soap and cosmetics maker. Until Mr. Hanson arrived in May 1983, the new software was called Interface Manager, which the programmers liked.
Understandably, Mr. Hanson scrambled for an alternative. He had scant knowledge of computers at the time. "I recall that windowing or something like that had been used by somebody," Mr. Hanson said in deposition testimony, "and that's what triggered me to think about it as windows. . . . I looked at our product, and ours was clearly, had windows on the screen."
So Microsoft Windows it was.
The rise of the Windows brand came slowly, and Microsoft's efforts to win a trademark for the product were rebuffed by the United States Patent and Trademark Office until 1995, the court records show. In rejecting the company's application to register Windows in 1993, the agency found that the word was "a generic designation for the applicant's goods" and that "no amount of evidence of de facto secondary meaning" could justify trademark status.
In the 1993 deliberation, Borland International, a software maker that had trademark applications pending on products containing the word "windows," filed a letter protesting Microsoft's application. Later that year, according to court records, Microsoft purchased Borland's pending trademark applications for $1 million.
Microsoft then renewed its efforts unopposed, and in early 1995 the trademark office approved the registration of the Windows trademark. The 1995 approval, Judge Coughenour noted in his order, was rendered "with no analysis or explanation for its reversal of the original decision to refuse registration."
The historical record, according to Lindows.com, supports its countersuit against Microsoft.
If Microsoft lost its trademark on Windows, what difference would it make now? Legally protected or not, the Microsoft Windows brand is firmly entrenched, a monopoly in people's minds, it seems.
Still, a loss of trademark would open the door to an uppity PC maker or AOL that wanted to use the Windows name. Imagine "H-P Windows," " I.B.M. Windows," "Dell Windows" or "AOL Windows." Most likely, Mr. Robertson speculated, a big-brand alternative would be based on Linux, like Lindows.com. "It's not out of the realm of possibility at all," he said.
Today, any such Linux-based alternative would probably pose a more imminent threat to Mr. Robertson's company than to Microsoft. No matter, said Mr. Robertson, who portrays his David-versus-Goliath adventure as a quest for greater competition in the economy. People, he said, are always complaining about Microsoft. "But if you want to do something about Microsoft, go give them some competition," he said. "I'm young, I'm rich and I can do it."
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