If App Store's Trademark Is Generic, So Is Windows' 356
Toe, The writes "In response to Microsoft's attempt to dismiss Apple's 'App Store' trademark application, Apple references Microsoft's claim to the Windows trademark. 'Having itself faced a decades-long genericness challenge to its claimed WINDOWS mark, Microsoft should be well aware that the focus in evaluating genericness is on the mark as a whole and requires a fact-intensive assessment of the primary significance of the term to a substantial majority of the relevant public.'"
Are they kidding? (Score:3, Interesting)
It *is* generic because I was using the term well before Apple. In fact I was using it in a PC environment. At my job, which is a fairly large government agency, if we wanted to install software on our computers then we were told to "look in the appilcation store" to see if it had been approved. If it was then we could "order" the app and it would either automatically install at boot, install pending license validation, or hold for technician assistance. And often times amoung the more savy folks it would just be called the app store.
So suck it Apple.
Re:Are they kidding? (Score:5, Insightful)
Re:Are they kidding? (Score:4, Insightful)
I don't see Microsoft suing anybody because they say they are using Ubuntu with a windows GUI.
I can see Apple suing people to stop saying "app" or "app store"
Re:Are they kidding? (Score:5, Interesting)
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The court Decided that there was no infringement ...
"After two and a half years of court battles, Microsoft paid US$20 million for the Lindows trademark, and Lindows Inc. became Linspire Inc."
i.e. Microsoft did not win they just bought the opposition
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Don't shoot the Messenger Agent, but even a Student can see that Microsoft's Projects are all creatively named, protectable trademarks. My Word, your Office's Assistants and Publishers could easily tell you that. Movie Maker.
Wrong. So wrong. (Score:4, Informative)
They lost in the English speaking world, shopped around until in Finland, they won (because those glass holes in walls you look through aren't called windows in finland).
At that point, Lindows sold their name to Microsoft and changed to Linspire because MS could have sued in Finnish courts and since they don't make much money off it, it would cost them their company to continue. Since prosecution would cost Microsoft some pocket change, they used it to buy the trademark and end it.
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I don't see Microsoft suing anybody because they say they are using Ubuntu with a windows GUI.
I can see Apple suing people to stop saying "app" or "app store"
If the courts do their job, then any claims about the first three of those should be thrown out with extreme prejudice, but anybody using the last one is definitely guilty of taking the piss and asking for a nastygram from MS lawyers.
Likewise, if we could trust the lawyers not to go after references to "application stores" unless s
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I can see Apple suing people to stop saying "app" or "app store"
That's personal opinion, of course. I, on the other hand, think that they wouldn't. You do need to realise that the only reason why Apple are doing this is because Microsoft are being such utter douchebags in the first place.
The only reason my husband beats me is because Jane's husband down the street beats her. Apple doesn't need Microsoft to be sue-happy douches. They do that quite well enough on their own, thankyouverymuch.
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Re:Are they kidding? (Score:4, Insightful)
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Re:Are they kidding? (Score:4, Insightful)
Let me spell it out:
"Windows" isn't actually a window -- it's an operating system. If they had called it "The Operating System" they'd have a hard time trying to keep anyone else from calling their OS "The Operating System."
There's no comparison between "Windows" and "App Store". It's not about "this name has been used before"; it's about a trademark-able name vs. a generic name. If I call my car parts store "Car Parts" you'd still be able to refer to your store as a car parts store.
It's called "descriptive trademarks" and you can read about it and its weaknesses -- assuming you can read -- here. [registerin...demark.com]
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Re:Are they kidding? (Score:5, Insightful)
The question, however, depends on context. Within the context of OS's, Windows is not generic - there's no generic Windows OS, just microsoft's. Outside of that context, microsoft can't assert its trademark: you can still sell windows (the glass panes) or software using windows (the GUI element) irrespective of the fact that an OS has that name.
Similarly, Apple is allowed to call itself Apple despite the fact that an apple (the generic fruit) is a common word, and despite the fact that the name famously could cause confusion with Apple Records - context matters.
Within the context of application stores, the term app store is rather generic. Comparing this the the mark Windows seems like a publicity stunt rather than a real legal argument - it's not convincing at all. If they were selling a phone called app store, or shoe polish or whatever - they'd have a case. But they're calling an app store (the generic term) app store (the trademark).
That's like trying to trademark the word Apple for a particular brand of apples - good luck with that...
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The question, however, depends on context. Within the context of OS's, Windows is not generic - there's no generic Windows OS, just microsoft's. Outside of that context, microsoft can't assert its trademark: you can still sell windows (the glass panes) or software using windows (the GUI element) irrespective of the fact that an OS has that name.
Sure there is – Xerox coined the term windows for the little rectangles put on screen, and the term was well in use by apple when MS named their OS windows.
Re:Are they kidding? (Score:5, Insightful)
You do realize that you completely missed the point right? In the context of Gui elements, windows was the term for the rectangle on the screen containing the application. However, in the context of an Operating System (not Gui Elements) there is no generic Windows, only the microsoft Operating System product which is named Windows. There is no generic term Windows when speaking about Operating Systems, if you are talking about them and say Windows, everyone knows what you are talking about.
If you say "App Store" do you think people will instantly think of Apple's App Store, or do you think that they will think App Stores in general? Can someone tell you're talking about Apple's App Store without any clues other than the words App Store?
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Wait, what?
http://en.wikipedia.org/wiki/Application_software [wikipedia.org]
"Application software, also known as an application or an "app", is computer software designed to help the user to perform singular or multiple related specific tasks" /Wikipedia
"Application" has a well known meaning in the computer software industry since nearly forever - just like, say, "Component" - and it has nothing at all to do with Apple. Unsurprisingly, the word "Application" has always been shortened to "app".
For a somewhat recent reminder
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It's a bit different. you can trademark the same thing but in different areas. "windows" are generic objects in walls and objects within an application. however if i create a *program* and call it windows i'm infringing. if i create a new car and name it windows it's likely not to be confused with the software.
same for "apple" and "apple" and "apple" one is a record label one is a computer another is fruit, once again calling above said car an "apple" its not likely to be confused with any of them. if i
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But Apple's point is wrong.
Apple used the term windows before Microsoft created Windows, that is true. However Apple was talking about Gui Elements, there was no product or operating system named Windows that would be trademarked. This is why using windows talking about Gui Elements does not infringe on the trademark. However, App Store is a generic phrase which represents the specific thing they are trying to trademark it for. Since the general public sees an App Store as any store that sells applications,
Secondary Meaning (Score:3, Interesting)
Windows, in its literal meaning, implies a hole in the wall, often filled with glass, for the purpose of providing visual penetration or airflow.
Windows, in its secondary meaning, refers to an operating system written by Microsoft.
"App Store" has no secondary meaning as far as I can see, as its literal and "secondary" meanings are identical.
Now, losing a trademark on grounds of genericness, aka "being adopted by webster", is something else.
For examples, I see "xerox" and "google" in danger in this way.
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Well, there's another fairly generic meaning for the term "Windows", in reference to windows in a WIMP GUI environment. Microsoft basically named their GUI shell/OS after a generic user interface element.
Now, as for "app store", it does have other uses but I'd have to say it's less generic than "Windows".
Re:Secondary Meaning (Score:4, Insightful)
Re:Secondary Meaning (Score:5, Interesting)
Ok, trolling, I just couldn't resist. And I see your point.
However it always surprises me when people (Apple, Microsoft, you name it) waste time in scolding each other on such trivialities. (To anybody who is going to say trademarks are not trivialities as lots of money are involved etc... I am aware of all that. I just find it all meaningless.)
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Because you don't find it all meaningless. Go look at the website in your sig. That's branding, that's trademarks.
If I create flare-network.org that caters to gay clothing shoppers, you'd be pissed, right?
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Get the latest women's high fashion trends, beauty tips,
Besides, even if I found it irritating, I wouldn't be scolding you for using the term "flare". And I still find the trademark/brading craze meaningless.
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Windows, in its secondary meaning, refers to an operating system written by Microsoft.
You mean windows, in its secondary meaning, refers to small rectangles of screen real estate that can be moved around using a mouse, and existed for long before microsoft named their OS after them?
Generic Trademarks (Score:5, Insightful)
You get a generic trademark when a product or service has become so ubiquitous in the field that the mark's name comes to represent the field rather than a specific company's product. (For example, escalators, or zippers, or Pilates.) I don't think Apple's argument that Windows is generic really flies very well. When the word "Windows" or "Microsoft Windows" are said, it creates a very clear image of what is being discussed - specifically, Microsoft's own operating system. However, when you say the word "App Store", I think that conjures up images of just about any sort of app stores that we have nowadays - Palm's, Blackberry's, Windows Phone's Android's, etc. Even though none of the other companies precisely use the term "App Store" in their product's name, the mark itself immediately conjures up the entire field instead of Apple's specific App Store service.
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This reminded me of my good ole days in tech support (actually Apple). A customer called in with a problem and I said "ok, we need to start by closing all your windows" followed with an "OK" and the sound of the phone being set down. As I sat there in silence for a minute or two, he came back and said "OK, I closed them all now". I then said "I did mean all the windows open on your computer" followed with the response of "Ooooooooh, sorry."
True, if someone walked up to me in the street and said "Windows"
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when you say the word "App Store", I think that conjures up images of just about any sort of app stores that we have nowadays - Palm's, Blackberry's, Windows Phone's Android's, etc.
I imagine Babbage's.
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That is rather Apple's point: the others are living off the goodwill created by Apple's innovation ("passing off", in the parlance). ie, Apple's argument is that it has become generic because others lifted it. And I believe US trademark law operates on a "use it or lose it" principle that requires trademarks to be defend
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Also, I would bet a reasonable amount of cash that if you did a survey of non-geek smartphone users, most would think "iPhone" to the prompt "App store".
I think the opposite is true. Geeks may know the difference between App Store, Marketplace, App Catalog, App World and Phone Marketplace, but most people don't.
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However, when you say the word "App Store", I think that conjures up images of just about any sort of app stores that we have nowadays - Palm's, Blackberry's, Windows Phone's Android's, etc.
I think that's true on Slashdot, but probably not if you wandered around a shopping mall asking people. This will hinge on what is determined to be relevant consuming public.
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One could argue that "the app store" is a specific and well known software repository. The problem, in both cases, is that the term was already generic before some large corporation claimed a trademark on it. Microsoft has managed t
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Except that Microsoft does not claim trademark over the generic usage (the GUI elements), only the specific usage (a computer OS). Apple, on the other hand, is trying to claim trademark on the generic usage of a place where apps are sold.
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No one is going to confuse the window you have open on your screen with the Windows operating system.
Actually, outside of technical circles, people routinely confuse these things, and even more so when I say "X Windows" to refer to my graphical environment.
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However, app means "an OS X/iOS application" and has done for a long time –windows had exe to mean the same thing, linux users often used program to mean the same thing.
Re:It's still different (Score:5, Informative)
"App Store" by itself is inherently generic. It literally just means "place where apps are sold." Trademarking it is as ridiculous as trademarking "shoe store" or "electronics store." Windows, used in the context of a computer product, is not generic. Rather, it's a specific, well-known product.
That doesn't mean it's "inherently generic", but rather that it's "descriptive". There are four categories of trademarks - arbitrary or fanciful, suggestive, descriptive, and generic. Only the last is barred from protection.
To show that "App Store" is not generic, but is instead descriptive, Apple has to show that it refers to a specific store - theirs. Consider the restaurant "Cafeteria", as well as "The Container Store" and "Staples". And to show it's got protectable secondary meaning in the minds of the consuming public, they must show that people hearing "App Store" think "Apple", rather than "Palm" or "Google". And I think they've got a good choice. Slashdot aside, the rest of the consuming public may not even know that other App Stores exist.
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Slashdot aside, the rest of the consuming public may not even know that other App Stores exist.
People keep saying this - but consumers have been buying Android phones at a faster than iPhones, and everyone agrees that trend isn't going to end soon.
Re:It's still different (Score:4, Informative)
Slashdot aside, the rest of the consuming public may not even know that other App Stores exist.
People keep saying this - but consumers have been buying Android phones at a faster than iPhones, and everyone agrees that trend isn't going to end soon.
"Everyone" being market analysts. They don't determine whether consumers actually think of "App Store" meaning Nokia, or Motorola, or any of those. If you Google "App Store", the entire first page - except for this news story - is Apple related. On the second page, you get three non-Apple hits, but they're labeled "Shopify App Store," "Samsung Store," and "Chrome Web Store". Flipping through the first five pages, I didn't see anything Android related except for a news story about Amazon's Android Store. Even the Wiki article for "App Store" refers to it as solely meaning Apple's App Store.
Re:It's still different (Score:4, Interesting)
"App Store" by itself is inherently generic. It literally just means "place where apps are sold." Trademarking it is as ridiculous as trademarking "shoe store" or "electronics store." Windows, used in the context of a computer product, is not generic. Rather, it's a specific, well-known product.
"Window" is a graphical user environment concept, predating MS Windows by a good many years. X Windows predates Microsoft Windows by one year. Microsoft trademarking the term "Windows" forced the X Consortium to change the name to "X Window System". Pot, kettle, dark color, etc.
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Microsoft though DOES have some real names....
Power-Point, Access, Excel, One Note (The best software they make right there...) Outlook, and their biggest one..... BOB.
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The Paper Store is not the same as paper store. Someone can call themselves Joe's Paper Store and not run afoul of The Paper Store.
It's not Windows but "MS Windows" (Score:5, Informative)
AFAIK, Microsoft got rejected when they tried to register "Windows" as a trademark and went for "MS Windows" and "Microsoft Windows" which both are valid trademarks.
Apple had trouble with it's name as Apple was used by a record company before... They got through it by agreeing to not sell music... Untile they started iTunes and the whole issue came back...
"App Store" by itself is a généric name and should not be copyrightable (same for App Market and so on). But Apple can trademark "iTunes" and "Apple App Store" if they want...
But they'll have trouble enforcing the "App Store" trademark...
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They got through it by agreeing to not sell music... Untile they started iTunes and the whole issue came back...
It also came back in the system 7 days when they added Sound Manager. That's why one of the system chimes is named "sosumi"
http://www.boingboing.net/2005/03/24/early_apple_sound_de.html [boingboing.net]
That's stupid (Score:5, Insightful)
That's stupid. "Windows" may well be generic, but it's a very different situation from "App Store". What does the App Store do? It sells licenses to executables (and implements an infrastructure to that end). Those executables can be referred to by a very small set of words: application, program; others are overly specific (tool, utility, game) or overly technical (executable, binary). The place where one sells things can also be referred to by only a few words: market, store, shop (and those names for physical places are routinely metaphorically extended to refer to virtual places).
What I'm saying is that the name "App Store" is a fairly accurate description of what the App Store is. It's a natural name for it in the same manner that Red Truck is a natural name for certain kinds of large red vehicles. What's more, it's one of a fairly small set of accurate short names for such things.
So what about "Windows"? Certainly, the graphical user interface objects you often deal with are also windows. But what does Windows do? Well, it's an operating system, etc. etc. It does not do windows, though, neither is it a window or windows. Maybe it's a windows operating system, a compound noun similar to app store? I guess that'd be a fairly daft (or, possibly, creative) way of referring to an operating system that contains a GUI: in which case it'd be acceptable to refer to OS X as a windows operating system. Doesn't work very well.
So maybe the Windows trademark is generic since it's derived from a prominent/visible constituent object. But unlike app store, the trademarked name doesn't describe the whole thing. Instead it's is a case of metonomy, arguably a more creative process than compounding two very salient concepts.
Why yes, I am a linguist. Which I guess makes me quite unqualified to participate in a legal discussion. But sometimes it's fun to talk about these things as if they were bound to reason.
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But what does Windows do? Well, it's an operating system, etc. etc.
No, the underlying operating system was single-tasking MS-DOS on top of which Windows offered... windows for multi-tasking. Just like the X Windowing System did for UNIX.
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> But unlike app store, the trademarked name doesn't describe the whole thing.
Presently, no. Back when "Windows" was just graphical shell sitting on top of MS-DOS, it wasn't entirely inaccurate to say it was just a window system, conceptually comparable to the X Window System.
It grew, admittedly. But I wouldn't argue they should have renamed it anymore than I'd suggest iTunes is no longer the correct name for device synchronization software.
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Even then, "Windows" is more of a creative name than "Window System." If they had called it "Window System" and tried to trademark that, they'd have a smaller chance of getting it.
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So maybe the Windows trademark is generic since it's derived from a prominent/visible constituent object. But unlike app store, the trademarked name doesn't describe the whole thing. Instead it's is a case of metonomy, arguably a more creative process than compounding two very salient concepts.
Why yes, I am a linguist. Which I guess makes me quite unqualified to participate in a legal discussion. But sometimes it's fun to talk about these things as if they were bound to reason.
The legal terms you're looking for are "descriptive" vs. "suggestive". They represent different classes of marks, specifically those which need to show acquired distinctiveness, and those which have inherit distinctiveness. "Generic" marks are ones which describe an entire class of products rather than a specific one.
So, "windows" describe those things you see through, and also describe those things that applications fill with content. But "Windows" is more suggestive than descriptive, since while related,
The True Windows (Score:2)
We, the geeks, know that there is only One True Windows System [wikipedia.org]. :)
Only if it was called "Operating System" (Score:2, Insightful)
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Highly doubtful, as IBM used DOS in the same context before MS did.
But Microsoft lost a Windows trademark claim (Score:2)
Windows tried to sue Lindows for violation of their trademark, but the court said that Windows was a generic term and the trademark only were valid for "Microsoft Windows". So, yes! Windows is generic, but I guess that was not their only defense....
Can both of them lose? (Score:3)
Please? There's a reason why you can't place a trademark on normal everyday words as "intellectual property".
rename it (Score:3)
The big difference... (Score:3)
Why I can't stand trademarks (Score:2)
With trademarks we get such great company, product, and website names as (compiled from the web):
Doostang, Twubs, Ftags, Blews, Opodo, Putacart, Plurk, Flickr, Cuil, Awind, Twitter, Flizo, Fluidux, Exaact, Galxz, Linqto, Tilili, or E-On
This alone should be reason enough to stop this idiotic legislation and get rid of trademarks altogether. Seriously, please stop this madness! These name abominations hurt everyone's eyes and ears.
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If there were no trademarks, how would you ever know what you are buying? Anyone could slap together a phone and call it an Apple iPhone. Every car could be a BMW. Every refrigerator a GE.
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No, I did not suggest that words don't have meaning apart from trademarks. However, the words 'Apple iPhone' do NOT have meaning apart from trademarks (well, Apple does, but it means a piece of fruit). The only way anybody has any expectation of what an 'Apple iPhone' is is because it is a BRAND (ie trademarked). In the absence of trademarks and hence branding Apple is just another generic term for 'consumer electronics manufacturer' and iPhone is just another generic term for smart phone. Take the word
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I don't know if you are trolling or really believe the crap you are saying, but none of it makes any sense. First, I challenge you to name a single thing that, "in the public's mind" is associated with a specific manufacturer or product WITHOUT trademark protection. None of this 'it could happen' bullshit, actual examples. In the real word exactly the opposite happens - no trademark protection means what was formerly associated with a manufacturer is now just a generic term for a type of product regardle
Apple (Score:2)
Apple. You hardly can get more generic than that.
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It's time for you to learn a lesson: it's not a copyright issue, but a trademark one.
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This isn't about copyrights, this is about trademarks.
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omg! of course it's copyrighted by apple. ... ... so every app developer should pay 30% to apple! ;-)
everybody knows "app" comes from "apple".
as in apple store -> app store
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Actually until 30 seconds ago, I thought App=Application(as I well should), not apple.
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How far of a leap is it to say that application is just a longer form of app so it's also covered under trademark. No more application developers unless you want to be sued.
A huge leap. Their trademark isn't on "App" or "Application", but on "App Store", and only in that specific field.
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BadAnalogyGuy, is that you? Because you say that "truth in advertising" should teach them a lesson about copyright in a trademark case?
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It all comes down to use of the word, not about if a word can be used or not. Apple can not name a PRODUCT "Windows", yet it can use the term "windows" when talking about a GUI element. On the flip side, an "Application Store", or "App Store" should be seen as a generic term for anywhere you can buy applications. There is no real competition here, since the APPLE App store does not offer products for other platforms, the Android "app store" would be for Android devices, etc. App store is really
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http://groups.google.com/groups/search?as_q=windows&as_epq=&as_oq=&as_eq=&num=10&scoring=&lr=&as_sitesearch=&as_qdr=&as_drrb=b&as_mind=1&as_minm=1&as_miny=1981&as_maxd=1&as_maxm=1&as_maxy=1985&as_ugroup=&as_usubject=&as_uauthors=&safe=off [google.com]
96,000 'windows' posts before 1985 suggest that many people did associate 'windows' with computers (but not necessarily Microsoft) before the release of MS Windows.
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Kids these days! The word "window" to refer to a framed rectangular area on a computer desktop was in common usage years before Microsoft named their file and program management shell after it.
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I'd be curious to see how often 'app store' was used in a generic sense before Apple started using it.
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The full name for SQL Server (MSSQL) is Microsoft® SQL Server [microsoft.com]. It's just shortened by most of the tech community both internally and externally of Microsoft.
Hate to be picky but I'm seeing two trademark symbols on that page: Microsoft® SQL Server®
Besides, if you check out Microsoft's own list of trademarks you'll see 'SQL Server' in there all on it's own:
http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Trademarks/EN-US.aspx [microsoft.com]
You need to look at that (Score:5, Informative)
Their mark applies to
. In other words, it only applies to the "boxed product". I can still tell you that "Apache Derby is an SQL Server" because I am referring to a downloadable program, not a saleable functional complete product with manuals.
I think this shows you why lawyers and patent agents get paid according to the amount of weasel in their heredity. Clearly someone at Microsoft demanded that SQL Server get trademarked, and the scope got narrowed and narrowed until at last the USPTO rolled over.
Me, I always refer to it as "Microsoft ess queue el server 2008" because i won't play those silly games. As for people who call it "sequel", they need to get off my (IBM-coloured) lawn, because I can remember SEQL!
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Me, I always refer to it as "Microsoft ess queue el server 2008" because i won't play those silly games. As for people who call it "sequel", they need to get off my (IBM-coloured) lawn, because I can remember SEQL!
I'm the exact opposite. I call it "Sequel Server" to differentiate it from real SQL databases like Postgres.
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Windows is a valid trademark because it is not a generic term for an operating system. App Store is not a valid trademark because it IS a generic term for stores that sell applications.
'Gesture OS' is OK to trademark for an operating system because it is not a generic term for operating systems. Apple is trying to trademark a generic term in the field of business that it is generic.
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That was me. God knows what's up with the Slashdot commenting system these days, but I seem to randomly post as anonymous (when it manages to post at all)...
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Nonsense, when you say "windows" in the OS context, you always mean Microsoft Windows. The term has not become generic, that would mean that people use "windows" to refer to OS that is not in fact Microsoft Windows. On the other hand, you could easily say "app store" and mean the android application repository. The term has not even become generic, it has always been generic. It never exclusively referred to Apple app store.
Not so... The Apple App Store came out prior to the Android store, and prior direct-to-phone software stores had other names, like that Verizon abortion, VCast.
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I do, and many of my colleagues have used windows in the OS context to refer to Star, X Windows. In fact, when MS started using the term windows as a specific description everyone in the u=industry thought they were nuts and where going to use it because ANY OS that displayed a canvas was referred to was windows.
And that, my friends, is what happens when computer people make legal statements in areas that know nothing about. Often wrong, and based on ignorance.
It ONLY referred to the Apple store in 1987, wh
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