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Windows Campaign Violating Trademark?

By - Source: Tom's Hardware | B 18 comments

Microsoft is being targeted by a startup company going by the name ‘G.ho.st’ in an apparent claim that Microsoft is violating a company trademark. The violation in question has to do with use of phrases such as “no walls” in its US$300 million Windows marketing and advertising campaign.

G.ho.st CEO Zvi Schreiber sent a letter to Microsoft CEO Steve Ballmer last Tuesday asking that Microsoft stop using the phrases “life without walls,” “imagine without walls” and “imagine no walls” on its products, website, marketing materials, advertising and other promotions. It was also requested in writing that they stop using the phrases by the close of business last Thursday. To no surprise, it never happened.

As of Monday, Microsoft was still using the phrases in its campaign. Michael Marinello, a Microsoft spokesman, said via e-mail that the company has acknowledged it had gotten the letter from Schreiber but, “the allegation is without merit.” Schreiber claims that G.ho.st has been using the phrase “no walls” to describe its G.ho.st Virtual Computer product, which is a hosted operating system that runs in a virtual environment. This product is described by Schreiber as being a “conceptual alternative to Windows.”

To add to Schreiber’s request to stop using the phrases, G.ho.st has also requested that Microsoft publish, “in the same media where these marks were displayed or advertised” clarification that it has not licensed G.ho.st’s technology or trademark. They also asked that Microsoft mention that they do not use the same “features or benefits of the G.ho.st Virtual Computer.”

If none of that was enough, they are also asking Microsoft to negotiate a “good faith” license for the past usage of what the company believes is its trademark. At the time of publication G.ho.st had not responded to any requests about whether it would be taking legal action against Microsoft to resolve the matter.

For the record – G.ho.st has not officially trademarked the phrase and has only filed an application to do so, on the same day that it had sent Microsoft the original letter – last Tuesday.

Original source.

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  • 2 Hide
    megamanx00 , September 30, 2008 5:11 PM
    Meh.
  • 4 Hide
    emp , September 30, 2008 5:12 PM
    Lovely... a starting company trying to make a quick buck out of microsoft. This is the very reason why innovation comes to a halt.
  • 3 Hide
    gm0n3y , September 30, 2008 5:22 PM
    "G.ho.st has not officially trademarked the phrase and has only filed an application to do so, on the same day that it had sent Microsoft the original letter – last Tuesday."

    They haven't a chance. I guess they're just hoping for a decent settlement.
  • 1 Hide
    antonbar , September 30, 2008 5:51 PM
    Note that G.ho.st has the "No walls" trademark by the virtue of use (http://books.google.co.il/books?id=n3p-cmJ1mC0C&pg=PT282&lpg=PT282&dq=trademark+law+%22virtue+of+use%22&source=web&ots=HClc-d2CXq&sig=4dtISnXx8ob2XrkHj66DU2_kfwU&hl=en&sa=X&oi=book_result&resnum=1&ct=result).

    There's no need to register in order to get this right.

    Cheers,
    Anton.
  • 1 Hide
    gm0n3y , September 30, 2008 6:25 PM
    Yes, antonbar, but good luck winning a lawsuit against M$ without it.
  • -2 Hide
    Scooder , September 30, 2008 6:27 PM
    MS can royally eff up their advertising campaigns on their own, thank you very much. They don't need help.
  • 1 Hide
    TwoDigital , September 30, 2008 7:41 PM
    Anton: the case you reference is valid in-so-far as it shows that 'virtue of use' is required over 'intent to use' as a measure of defacto trademark. However, I'm not aware of a precedent for a non-tradmarked advertising slogan being upheld as a basis for a cease and desist action as G.ho.st is trying to pursue in this letter.
  • 2 Hide
    Anonymous , September 30, 2008 8:07 PM
    lol lamer startup businesses... this is part of the reason Americas economy is crashing and burning... because they don't' innovate they just "steal"
  • 2 Hide
    Anonymous , September 30, 2008 8:16 PM
    Well, it looks that this G.ho.st is getting cheap publicity ...
    What would they want more ? I bet no one ever heard about them before this "newsflash".
  • 2 Hide
    apoq , September 30, 2008 8:55 PM
    Am i the only one who finds registering catch phrases to be totally retarded??
  • 2 Hide
    starhoof , October 1, 2008 1:31 AM
    well... mabye i can sue them both too.... because my moto is "I live without walls" but i dont have it licensed.... but still....
  • 0 Hide
    zvi , October 1, 2008 7:38 AM
    In trademark law you accumulate rights by virtue of use - with or without registration. When G.ho.st applied for a registration recently, it was applying to register legal rights in the trademark NO WALLS which G.ho.st had already accumulated by public use of the trademark NO WALLS since April 2007, 17 months before Microsoft first used it.

    Clearly Microsoft have no right to use the same trademark (or minor variations) as a much smaller competitor, and even though we are much smaller we will do our best to protect our intellectual property rights and not get bullied.

    Zvi Schreiber
    CEO, G.ho.st
  • 0 Hide
    ossie , October 1, 2008 8:36 AM
    micro$uxx just gets its own medicine...
    lindows anyone?
  • 1 Hide
    Anonymous , October 1, 2008 8:45 AM
    Sorry, but to me it seems just like a little try to get big attention.
    Trying to get company name mentioned everywhere.

    I'm not talking of trademarks (no idea about USA's laws) - but just about trying to get cheap publicity.
  • 0 Hide
    antonbar , October 1, 2008 9:00 AM
    moriarty, would you seat aside quietly and watch MS stealing YOUR trademark, just because any attempt to protect it would look like a "little try to get big attention"?
  • 1 Hide
    lolcopter , October 1, 2008 9:09 AM
    HA HA. The claim is so broad. You americans will sue over anything. I hope MS crushes you and then buys you out and releases your product as freeware beta and then retrenches everyone and sell off the assets for 50c. PWNT. Everyone is suing everyone over every little thing because they have nothing worthwhile to bring to the market. Always the little fish trying to be a big fish.
  • 0 Hide
    smalltime0 , October 2, 2008 2:02 AM
    "In trademark law you accumulate rights by virtue of use - with or without registration. When G.ho.st applied for a registration recently, it was applying to register legal rights in the trademark NO WALLS which G.ho.st had already accumulated by public use of the trademark NO WALLS since April 2007, 17 months before Microsoft first used it.

    Clearly Microsoft have no right to use the same trademark (or minor variations) as a much smaller competitor, and even though we are much smaller we will do our best to protect our intellectual property rights and not get bullied.

    Zvi Schreiber
    CEO, G.ho.st"
    I believe that is only true if the defacto trademark is actually known to anybody but the three people who made it.
  • 0 Hide
    Anonymous , November 29, 2008 7:21 PM
    It's true that you acquire trademarking rights by virtue of use, without or without registration. But according to Cornell's trademark resource page, those rights a *very* limited. The best thing to do is to register the trademark with the USPTO as soon as possible, instead of waiting until a trademark issue pops up.