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Hi People,.

Microsoft is threatening to sue us over a domain name www.windowssystemoptimizer.comthey had sent us a notice sometime back... to which I had my lawyer reply. now I get this letter again saying that I had better leave it or I get sued! We have been selling the software under this brand for ages now! and they have no rights over the name "Windows System Optimizer".

NEED HELP & ADVICE!.

PLEASE HELP SPREAD THE WORD AROUND ... HELP US FIGHT MICROSOFT!.

Some facts:.

Microsoft was infact very recently involved in a very similar case, involving another such domain name and software author who did not want to fight Microsoft and gave up the domain name and the assigned all rights of the same to Microsoft. Soon after which it started using the domain name and launched a product by the same name. http://www.theage.com.au/news/breaki...578147096.html.

By Microsoft's own standards they are using the trademark Vista which is owned by another software company in Redmond, and as such Microsoft says "We are only using the word Vista paired with our trademark Windows. The two together - "Windows Vista" - form the name of the next version of the Windows operating system," http://www.theage.com.au/news/breaki...578147096.html PLEASE HELP SPREAD THE WORD AROUND ... HELP US FIGHT MICROSOFT!..

Comments (57)

We must all join the fight against companies protecting their trademark..

Comment #1

Our tm is "Windows System Optimizer" and not windows.

If we have to fight anything then fight microsoft ... like my example stated... they are using Vista which is a trade mark of another company. so they have no right to sue us for using windows in our name...

Comment #2

Yes they do, it's their trademark. Maybe this should be moved to the "legal issues" forum...

Comment #3

You have no idea about what you are talking.

Windows is the trademark not windows system optimzizer...

Comment #4

Moved to legal section .... windowssystemoptimizer.com.

Creation date: 20 Jun 2003.

Sorry , But I don't see it as ages really ..... and I can't understand why anyone would even try to Brand themselves on a name that could have obvious problems at any time. Why not make up a shorter name of your own ?? If the product is good - It shouldn't matter what you call it. microsoft.com.

Record created on 02-May-1991..

Comment #5

I'm going to manufacture a new car called the "BMW Namepro" - BMW won't be able to touch me, because it's "BMW Namepro" not "BMW"..

Comment #6

This is an interesting read: http://www.theage.com.au/news/breaki...143890571.html.

Beck's comment:.

""We are only using the word Vista paired with our trademark Windows. The two together - "Windows Vista" - form the name of the next version of the Windows operating system," he said."..

Comment #7

So if I made a site www.freewindows.com (for example) and was selling free house windows they could get me?.

The law needs serious work.....

Comment #8

No, just as Amazon.com couldn't do anything if you made amazontours.com, for tours of the amazon..

Comment #9

Uh... are your house windows a piece of software specifically designed and sold to run on a Microsoft platform?.

Didn't think so.

LOL for oliciv...

Comment #10

When you have a spare couple of billion to fight Microsoft and you have a valid case, then good luck to you.

Until then, you dont have a leg to stand on, as Mark pointed out the age of the domains in question are to far apart, if you had your domain pre Microsoft.com and the Windows TM, then you might have a case.

Thank you.

Sin..

Comment #11

I'm afraid you are using the 'Windows' name to brand your product. This is infringement in every case sadly...

Comment #12

I dont understand why Microsoft want to take down the site. The site is not directly competing with Microsoft, only selling software which is supposed to be used with Windows...

Comment #13

Well that's the way Microsoft is... they want to horde everything and prevent people from trying to defame their name.

Also you can only sue over a TM infringement if the two websites with the same TM are in different categories completely... like for instance vista.com for windows vista and visitvista.com as a tour site...

Unfortunately since both windowssystemoptimizer.com and microsoft.com are in the software category... you will probably stand no chance. especially against their insanely expensive lawyers...

Comment #14

Bookmarc you have no case and no hope. Neither should you have any case you are profiting from their trademark, why would you start a company based around such a domain in the first place?.

P.S what kind of support to you expect to rally up from this forum? How in anyway even if all 27,000+ members here supported you would this help your case?..

Comment #15

Have some of you considered putting yourself in the shoes of the other side,.

To have even just an ounce of understanding, what it's like having someone.

Try to exploit your hard-earned work for their own benefit?.

I guess it's just me. But some people here seem to automatically bash these.

So-called big companies from bullying others into submission without exploring.

Further.

Then again, as someone once said, the door swings both ways. Whether it's.

This or that depends on what side you're on.

BookMarc, I can only wish you all the luck in the world. But honestly, you're.

Toast...

Comment #16

Dellwebsites.com is being sued for over 100,000, and their trademark is dellwebsites not dell..

Comment #17

Hold up....

Windows: http://images.google.com/images?q=tb...2520window.JPG.

Windows: http://images.google.com/images?q=tb...ndows_logo.jpg.

Hmmm..... Didn't Windows (PC) steal from Windows (On Walls)? I mean, when you think about it...... you know. They have no right to sue you because you got windows in your domain. Just like they got Windows in their stuffs...

Comment #18

As the others are saying, Microsoft has EVERY right in the world to sue you, and if I were them I would do the same. Sorry, but you have no chance whatsoever. Do whatever it takes to get them off your back, if there's still time. Umm, no comment......

Comment #19

I bet good money you used Windows to post that..

Comment #20

BMW would be the least of your problems once RJ found out about that. Take my advice run and hide...

Comment #21

If the average user downloads your software and it breaks something on their computer, they're going to associate it with Windows (and therefore Microsoft) because of the name...

Comment #22

There have been plenty of trademarks containing the word Windows issued for software to companies other than Microsoft. Microsoft has harassed nearly all of these people into giving up on their legal and legitimate right to use Windows in their trademark. Right or wrong the same will happen to you..

Resistance if futile...

Comment #23

Wow what maturity you have, you would love for thousands of people to lose their jobs possibly have to sell everything they own and possibly have to file for bankruptcy themseleves? Very impressive...

Comment #24

That should have read as follows:.

Microsoft has legally challenged successfully all the people attempting to infringe on their legitimate trademark of "Windows" for software...

Comment #25

Far out of proportion for you maybe, but if you ever experience yourself or someone in your family going through bankruptcy then I'm sure you will have a different outlook on it..

Can I ask why it is that you hate microsoft so much anyway?..

Comment #26

So what is your irrelevant point???.

I think you should read up of TMs for several days before you try posting again.....

Comment #27

No it shouldn't.

The USPTO has issued hundreds of trademarks for software products which contain the word Windows. These trademark holders have every bit as much right to their trademarks as Microsoft. Many of them have been harassed into abandoning their marks, other have been bought out.

Don't take my word for it. Head over to TESS and do some research. Do a bit more research and find out who had trademarks for software with the word windows before Microsoft. Do even more and research and find that Microsofts initial application to trademark windows was rejected but a subsequent application a few years later was granted under questionable circumstances.

If you're too lazy to do all that just google for 'lindows trademark' and you'll quickly find where much of this was brought up in court a few years ago.

"the term Windows was in existence, and known, prior to adoption by the applicant. Since the term is a generic designation for the applicant's goods, then, no amount of evidence of de facto secondary meaning can render the term registerable." -USPTO 1993..

Comment #28

Prima,.

The question in trademark law is always one of current consumer perception. Whether the USPTO refused an application in 1993, or whether Microsoft subsequent argued for descriptiveness and then acquired distinctiveness, is irrelevant to the question of whether now - in 2006 - a consumer of software is more likely or less likely to assume that a piece of software named "WINDOWS <thing>" originates with Microsoft.

It's not about dictionaries or mechanical rules. It is about whether secondary meaning exists in the minds of relevant consumers. Now, you can certainly argue about that, but it would not surprise me to find out that a whole heck of a lot of consumers associate WINDOWS on software with MS.

And it doesn't matter whether they were later than someone else in certain circumstances. There are situations called "reverse confusion" in which a junior user of a mark may obtain, at best, a payment from a later, but more famous, user in order to compensate the junior user for the cost of changing it's mark...

Comment #29

He'll probably ignore your question - Microsoft haters, especially this one, never really seem to have a good reason for their hate.....

Comment #30

"lindows trademark"...funny you say I was wrong in my post yet I am pretty sure that MS won the lindows case too.

Sorry but my statement holds true: Anyone can hate MS but it doesn't change the facts they are winning many of their legal challenges on the TM. I don't think they are sending their lawyers to beat people up..they send in the lawyers for legal action when the infringer claims holier than thou rights to the name MS has legal right over.

Hey I am not a fan of MS but then if I went and registered FreeWindowsOS4u.com and created a software company around it do you really think I would be in the right. The first step in creating a brand is to do it without infringing. It's a fools gamble to do otherwise...

Comment #31

"It's a fools gamble to do otherwise".

I agree, when the bloodsucking lawyers come knocking just give 'em the.

Domain with a big red ribbon tied around it.

GL..

Comment #32

Once again you are mistaken. Microsoft did not win, in fact it was pretty obvious that the Judge was leaning in favour of Lindows. Microsoft settled out of court and paid Lindows $20 million. Like I said, a little research can go a long way. John Coughenour* seems to share my disagreement with you on this point. Everyone will have a different opinion on the relative relevance of what happened a decade ago and what is happening today, but neither should be completely excluded.

*Judge on the Lindows case, for those who don't know who I'm talking about. I would say it's not *exclusively* about dictionaries or mechanical rules. But again, the rules should not be simply thrown out. This goes way beyond reverse confusion, this is a case of an generic term being granted trademark protection in error. Microsoft did not establish distinctiveness subsequent to the original rejection, at least the PTO didn't say anything to that effect. In all likelihood it was a clerical error.

So the question now is when someone receives a trademark for a generic term is the mark valid? The court says If the term is generic, it cannot be the subject of trademark protection under any circumstances, even with a showing of secondary meaning..

Further more, when the strengthening of this illegitimate mark is done through business practices that are ruled to be anti-competitive and illegal one really has to wonder how much weight should be placed on any distinctiveness they may have established in the process.

One might argue that Microsoft is free to continue to buy out anyone who chooses to use a trademark they aren't happy with. However I think even would fall foul of anti competition laws. But to use the courts to enforce a bogus trademark? I strongly disagree.

If Windows was such a sacrosanct mark ever since 1995 why did the PTO continue to register so many trademarks containing the word Windows for software products...

Comment #33

Hmm...I wasn't sure about the lindows case as I stated. I just know that lindows changed their name to linspire and thought it was a result of the suit. It's interesting after reading the wikipedia page about HOW that happened. Hmm..food for thought. I might have to retract some of my statements and change my opinion on a few things after reading this: http://en.wikipedia.org/wiki/Microsoft_vs_Lindows..

Comment #34

No. You are misreading both what I wrote and the procedural posture of that case.

Coughenor's decision was about whether to grant Microsoft a preliminary injunction. It was not a fiinal decision on the merits of the case.

First, let's look at your misinterpration of what I wrote. My point is that whether the term is distinctive is a question of fact, not a question of law.

Now, let's look at your misunderstanding of Coughenor's ruling on MS' preliminary motion. Some people think that a lawsuit involves the parties filing a complaint, a reply, and then trotting into court for a trial about who wins. That's not how it works. At the preliminary stage, either party will file a number of "motions" which either say, "This case is determinable on the undisputed facts among the parties", or "This case should be thrown out because even the plaintiff's facts, if proven, wouldn't result in a win for the plaintiff", etc. There is a laundry list of things on which a motion can be filed.

In this case, MS filed a motion for a preliminary injunction. A PI motion basically says, "Although there is some argument here, the likelihood of our winning is so spectacularly high, that we'd like you to issue an order stopping the thing we want to stop, at least until we can have a full trial on the merits." There is a list of factors that a judge will consider in granting or denying a PI motion, and some of them are highly discretionary. One of the factors is whether the case is, essentially, a "no brainer". If the defendant kicks up enough dust to make it less than really, really clear that the plaintiff is going to win hands-down, then the PI is denied.

The question on a PI motion is not about whether MS was right or whether Lindows was right, in some ultimate sense. The question on a PI motion is, "Based on what everyone's said before all the facts are in, does it look extremely probable that MS is going to win anyway.".

Now, look at what I said. I said, you aren't going to get an answer based on mechanical rules or the history of the trademark filings - in order to get at an answer, you're going to need to do consumer survey evidence and other things in order to figure out the relative distinctiveness of the term.

Coughlin's denial of the PI motion says the same thing. Coughenor''s decision says, in essence, "well, there are some arguments here that Lindows might be able to put up a good show about, and IF they manage to show that the term is generic, then they might have a chance of winning. So, I deny the PI motion.".

Whether to issue a PI is considered to be largely discretionary with the trial judge, and Coughhenor' decided to make his PI denial appealable before the trial proceeded. So MS went to the 9th circuit on an interlocutory appeal, and the 9th circuit, which is hardly ever going to look at an appeal on a PI denial with a lot of optimism, upheld the denial. It's just a PI denial, and appeals courts rarely give a rat's arse about rulings on prelminary motions anyway.

So, then, the case goes back down to the trial court and the judge sets a scheduling order for the trial. At that point, the parties settled, Lindows changed their name to Linspire, and everyone went on their merry way.

I would hardly call MS getting what they wanted in the first place to be a "loss".

I also realize that while the subject of "things that can happen in a court" can be confusing, running around waving quotes from a ruling on a PI motion is not going to impress anyone in the real world.

Here is the quote from Coughenor' you are probably keying on: "If the term is found to be generic, 'it cannot be the subject of trademark protection under any circumstances.

Yup. I agree. Note the "if". The point is that Lindows came up with a bunch of technical arguments that might have some chance of prevailing, so he wasn't going to call the race at the starting line. But where the rubber really meets the road is in consumer protection. I guess the fact that Coughenor' ALSO denied Lindows preliminary motions is not as impressive to you, but all that proceeding says is that Coughlin wasn't ready to make up his mind yet...

Comment #35

At the rate you're going explaining seemingly esoteric stuff to the layperson,.

You oughta be a journalist as well, John.

Anyway, great reasonable explanation on that case. Muchos gracias!..

Comment #36

I don't think so. I understand there was no trial. In fact that's a key point. Microsoft would have been insane to go to trial, but that's irrelevant.

I also appreciate that normally this type of ruling might not carry much weight in the real world. But that's not the issue here. In fact the quote you attribute to Coughenour is actually him citing the Filipino Yellow Pages case. I assume this case is worthy of being quoted if a judge is doing it?.

In effect what Coughenour said was that these other and previous factors were not as irrelevant as you claim. He agreed that Lindows had presented substantial, voluminous, and quality evidence to challenge the Microsoft trademark and that the case should go to trial. He had not made up his mind as to whether the trademark was valid or not, but he had made up his mind that Whether the USPTO refused an application in 1993, or whether Microsoft subsequent argued for descriptiveness and then acquired distinctiveness was not irrelevant.

Had this case gone before a judge who was more friendly to reverse hijacking, er I mean reverse confusion, I have no doubt the preliminary injunction would have stood a much better chance of success. That's why I'm not saying your wrong, just that people disagree with you...

Comment #37

There's nothing in Coughenor's opinion to agree or disagree with.

All he says is that there is a sufficient case for the matter to go to a trial. He doesn't agree or disagree with the proposition that the TM is not valid. And, you also have to remember, that this decision itself was rendered several years ago. In that time, would you think that the TM has become more likely, or less likely, to be distinctive in the minds of relevant consumers?.

The point is that if MS was going to lose on some mechanical rule flowing from the history of trademark registrations, they'd have lost right there. That is stating the question. That is not answering the question. So, I'm not sure what "people disagree" about, or why Coughenor's decision on a PI motion differs from what I said. Coughenor denied both sides arguments and said, "Hey, let's have a trial instead of a pissing contest".

I had a guy talk my ear off one day about how Coca-Cola is not a valid mark because it is a drink made from extracts of coca and cola. It was like the guy learned one thing about trademarks, but managed to miss the forest for the trees.

Saying "there's enough here for an argument" is light-years away from saying that the argument has a whole heck of a lot of merit...

Comment #38

Personally I LOVE MICROSOFT.

How many people would have never been to the internet if microsoft had not lauched their windows.

More then 50% of people right now on internet has never seen a UNIX system in their life time and they are earning their living.

I would never say anything against them. They are the people who were very first who made things easier for us.

The guy accusing microsoft here would have used some of their products in his lifetime.

I even doubt that his own software was developed with microsoft's technologies. Like VB or something else.

I think microsoft has done a great thing for us and for whole human kind by lauching thier wonderful products.

Imagine the whole system without microsoft and you will know where we stand without them.

Some people here might not be using a single product of microsoft. But then they have to depend on visitors who use the microsoft's easy and familiar products.

More then 50% of internet traffic would have been learning other operating systems right now instead of surfing your sites...

Comment #39

Uh, no... if they hadn't, then we'd all be talking about what a rat bastard Steve Jobs is, instead of Bill Gates.

But at least these ^%^**&_*$ machines would work better...

Comment #40

HA HA HA. Yeah I know poeple just want food for their thoughts and anger.

And I am MCP, MCSD and MCDBA myself So I cannot say bad things about Microsoft.

Means I am dedicated to them...

Comment #41

To whom?.

And can you give me some coke please. getting thirsty...

Comment #42

Not really, if windows was not around, there would have simply been something else. Could of meant a bigger Apple following or even more in the UNIX flavor of OS's. But all in all they all wouldn't still be learning, they would have learned to use computers at the same time just under different programs.

Now I will say this Microsoft, hate them or love them, has done good things for the computer world, and probably will continue to do great things (the 50 billion versions of Vista is just plain stupid though if you ask me).

MS activly protects their copyright, which any big company will do. They have the money to throw around to win every case, most of the people they go after simply can't afford to fight it, which must of the time wouldn't matter since they are clearly breaking copyright/trademark laws...

Comment #43

This thread has been overkilled... Can we all move onto something else?..

Comment #44

Sure there is. I know a guy who believes that nothing aside from current consumer perception is relevant. Lindows presented a single survey of current consumer perception. Coughenour found they had substantial volumes of quality evidence. I simply can't rationalise these two points of view as anything other than a disagreement.

That'ss the only thing I said. You've provided plenty of arguments against what you think I understand, what you think I mean, and other things I've never said. But you haven't provided anything to reconcile this paradox. Granted it's not nearly as exciting as debating all these other things, but it's the only point I'm debating...

Comment #45

You are correct, I was being too categorical.

Obviously, there was a non-frivolous argument to be made. Granted, the argument lost in several European jurisdictions, and was eventually rendered moot by Lindows changing their name.

I just wanted to be clear that there is some distance between a non-frivolous argument and one which is likely to ultimately prevail. It's also worth pointing out the distinction between denial of a preliminary motions and a final judgment. That Lindows decision was widely reported as some sort of major loss by MS, when it was more of a "let's wait and see".

Another one that is widely misinterpreted is the Geico v. Google decision. There were two issues there:.

1. AdSense ads that appeared in response to "Geico" and in which the text of the ads had the term "Geico" in them.

2. AdSense ads that appeared in response to "Geico" and in which the text of the ads did not have the term "Geico" in them.

The judge (the same judge in the Moussaoui terrorist trial, btw), said that category 1 was probably a trademark violation and should be stopped, but that category 2 was not as much of a no-brainer and might be fair comparative advertising. As a consequence, news stories on the case are all over the map as the tendency in reporting these things is to say who "won" or "lost" in some ultimate sense.

Interpretation of preliminary judgments is assymetric. A grant of a preliminary motion suggests that the argument is strong. A denial of a preliminary motion does not suggest that the counter-argument is strong, but merely suggests it may have some outside chance of succeeding. The point of a lot of litigation is to at least get some rulings on preliminary motions to see which way the wind is blowing, and then to settle, as happened here. No doubt, Lindows was probably able to settle on more favorable terms after this ruling than before it. Throughout litigation there are discussions of settlement positions.

Concerning it's applicabilty to the present circumstances, it is also worth mentioning that while "Lindows" was suggestive of a Linux system arranged to use "windows" in the descriptive sense, what we have here is a guy directly using the term "windows" as a reference to MS' operating system.

Your point about the Lindows decision is valid. I just wouldn't want this guy to run off with the impression it provides him with some sort of support.

But, yes, to be clear - You caught me being rhetorically excessive...

Comment #46

Im starting to hate microsoft alot lately. Damn them, just because there so big, they go pick on the little people with no money. What a bunch of idiots. I wish windows does something wrong in the future and gets sued by google, and maybe a few other big companies. Would love to see microsoft on there knees.

Hard for me not to say some bad things, so I'm going to stop here...

Comment #47

Google would be doing the same if the product in the OP was called "Google System Optimizer".....

Comment #48

Just hope you know microsoft's past, how they did not have much inovation and attacked their competation...

Comment #49

Why don't you just give up and call your product "PC System Optimizer"? It's shorter... You won't beat Microsoft...

Comment #50

And the first site in your sig is a Frontpage template..

Comment #51

Lol, good snag. Also, I cant see much innovation from you and attacking your competitors can be seen as a good method of marketing in the business world...

Comment #52

Gee give Microsoft a break. The world of business is a competitive one and I doubt most people would sit by a let a rival snatch up part of their market. Microsoft has to be tough to defend it's market share. It's not just a matter of sitting on top of the gold.

Unfortionately as mentioned earlier, should the program cause problems with the Windows OS people will associate the problems with Windows.

Perhaps a rename to "System Optimizer" or similar? "System Optimizer - For Windows" ?

Comment #53

I am so registering "the" as a trademark! Sue's all around!..

Comment #54

Thanks for clarifying that. I can see how people could be confused over what this all means, and I appreciate the effort you've put in to explaining it all. I just wanted to make it clear that I was making no more out of the Lindows decision than I intended to.

Anyone who bases a decision with complex legal implications on rantings in a forum deserves any what they get..

Comment #55

There was few nice advise in this topic. Thanks ...

Comment #56

I dont think what your saying is realy at all..

But if it is real then I am with you.

Even though I think you dont stand a chance against.

The microsoft.They're like the rishest company in the world.

And they have the best supprot with them...

Comment #57


This question was taken from a support group/message board and re-posted here so others can learn from it.

 

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