Microsoft Sued Over Bing Trademark

mentus writes "Bing! Information Design, a design company from Missouri, is suing Microsoft over 'intentional interference' with their trademark and claiming Microsoft had knowledge of the trademark when it relaunched its rebranded search engine. Microsoft legal representative Kevin Kutz states that he believes the case will be dismissed and that Microsoft 'always respect[s] trademarks and other people's intellectual property, and look[s] forward to the next steps in the judicial process.'"

First time?

[geekmux]

Uh, did this lawyer just fall off the turnip truck or what? Hate to tell you this Skippy Suit, but this ain't the first time Big Daddy Desktop has been in a courtroom for shit like this.

Microsoft definition of being "respectful" is cutting a check large enough to be bought out or go away.

Yeah, right.

[MojoRilla]

Yeah, right. Microsoft always respects other companies trademarks. Except when they don't like them. Tell that to Lindows [wikipedia.org] who Microsoft unsuccessfully sued for trademark infringement, and who eventually sold the Lindows trademark to Microsoft for $20 million.

bing.biz

[mbone]

Hmm. Microsoft got bing.com a while ago

WHOIS results for bing.com
Created on..............: 1996-01-28.

The Wayback Machine shows the first Microsoft Bing.com site (Coming Soon!) in 2003.

Now, Bing! is Bing.biz which is registererd (in Madeira, Portugal)
Domain Registration Date: Wed Nov 07 00:01:00 GMT 2001

and it says ion the web site

Bing! is a small design firm started in 2000 in St. Louis, Mo.

So, I am not a lawyer, and this is not legal advice, but it looks to me that Microsoft started thinking about using this name back in 1996. If they didn't actually start using it until 2003, they will probably have to settle. If they did something back in 1996, as long as it was public, and they kept records, Bing! will lose.

Re:Trapped!

[Futile Rhetoric]

"Prior art" is not a trademark-related term.

Re:Trapped!

[Rary]

I wonder why people always start claiming their rights so late.

Because obtaining trademarks is costly and time-consuming, and because an unregistered trademarks is still a protected mark. This is a fairly small company who, until recently, probably found that an unregistered trademark was sufficient for them. Now that Microsoft has started using the name, they've decided they need to protect themselves further.

Aren't you obliged to protect your mark?

They are. They filed suit and began the process of registering their trademark. They've been using it since 2000, so they should have no problem getting the trademark, since the system is "first to use", not "first to file".

Re:bing.biz

[omnichad]

Only if that domain name was being used for something like search or advertising. If it was Bing Dry Cleaners (fictional), then they might own a trademark on Bing in the laundry services industry, but not search.

Re:bing.biz

[txsable]

Microsoft did not own bing.com until March 4, 2009 when the domain ownership changed from "Davryn Pty Ltd" in Melbourne, Australia to Microsoft. Since 2002 the name bing.com has had several owners, including some guy in Michigan, someone in Denver; Palo Alto, CA; was transferred to an Australian company in 2007 until MS bought it in 2009. So no, Microsoft does not have long-standing claims on the Bing name, at least based on their domain registration.

(Reference: Domaintools.com Whois History records).

Re:bing.biz

[omnichad]

AMF, Inc v Sleekcraft Boats, 599 F.2d 341 (C.A.9) 1979 established a precedent, including 8 criteria for trademark infringement - one of which being "Proximity of the goods" http://en.wikipedia.org/wiki/Trademark_infringement [wikipedia.org]

Re:But why would it be intentionally similar?

[Gilmoure]

bdenton42 found the details [slashdot.org]. Turns out the lady running the restaurant in Baltimore (knew it was some city starting with 'B' east of the Mississippi) was known as Sony (same spelling) and was trying to register her restaurant in the phone book as Sony's. And so yeah, Sony defended their trademark, just in case anyone getting a Philippino based lunch got confused.

As for the Sonny's part, yeah, that's just my age creeping up on me. Coulda' swore I remembered the detail part of it being 'spelled differently but sounding the same.'

Re:Apple

[stormy_petral]

Apple got into the music business alright, some 25 YEARS after originally taking on the Apple name for a tiny garage-based company in a business that at the time seemed very unrelated to selling Beatles music. And ultimately Apple Computer PAID an undisclosed sum (translation: a boatload of cash) for the right to use the name in music marketing. Apple and Apple did have an agreement prior to the most recent one, its just that Apple Comp eventually grew out of it, and it had to be settled again, and indeed it was.

Actually, Apple DID grab a very related trademark: the iCal name was already in use for some time by another software calendar maker, Brown Bear software. The Brown Bear software site now explicitly states http://www.brownbearsw.com/ical/icalfaq.html [brownbearsw.com] that Apple is using the iCal mark by license, and brownbear is still selling their own product with the iCal name. All without benefit of any headline lawsuit that I ever saw.

One word

[kimvette]

Microsoft 'always respect[s] trademarks and other people's intellectual property,

Stacker.

Re:Apple

[ducomputergeek]

Apple Computer paid Apple Records some $500M or so to buy the trademark rights from the record company in 2007.

Re:Trapped!

[lamapper]

True, but since trademarks are "first to use" not "first to file", showing that:

1) You had your brand to market first, and
2) Their brand is interfering with your brand

allows you to make an excellent case that it is your mark, and not theirs. Sounds a lot like prior art, though in the "I said it first!" version, rather than a "public domain!" result.

This is what I also know to be true, if you are in the market, for years, first using that, how the heck could another company get "trademark" over you, no matter when you and they file. Even if the St Louis company files (for trademark) after Microsoft, they have been using "Bing" for almost a decade longer. Its game over.

As for enforcing their rights to the term, they are doing it now.

And do not forget that there are two other players involved per the article as well. Per the article:

In addition, two other companies are also taking action against Microsoft over what they say are trademark infringements: a web-based shopping service called BongoBing and software company Terabyte, which has a product called BootIt Next Generation, or Bing for short.

So today we know about three possible claimants. Do you think we will hear about two more tomorrow? Three? Four? After all the term "bing" has been a huge part of the RAP scene since the beginning; probably apart of some other scene before RAP. This is all too funny, or err ironic.

I call it ironic, considering how Microsoft is quick to threaten other companies, (Tom Tom, etc...) most of which if they stood up to Microsoft, WOULD WIN!, but fear the protracted legal fees to fight, thus Microsoft usually wins by default, which is what they are counting on in 98% of the cases.

I am still looking for the company they sue, that stands up to them and causes their flimsy legal house of cards to fold and drop. One day and when that happens, as Microsoft knows all too well, their ability to enforce their BS patent trolling will die as well, at least for that patent, get enough of them to fail and it will be game over for that Microsoft side business as well. Microsoft knows this and they are selectively selecting companies like TomTom they know they can bully, because without threats, they lose. The company that can afford to stand up to this BS patent trolling on Microsoft's part will win! Many of us will celebrate. For the company that fights, even negative advertising is still advertising and they will get a boat load of it! After all Microsoft's PR machine works in overdrive spreading their FUD legal arguments, spread that FEAR, UNCERTAINTY and DOUBT, losers.

Even better, we are starting to learn today how much GPL and open source code has been included in their new software offerings (Vista, Windows 7, Office, etc...). After all they did not invent the term kernel and we all know it! I keep seeing more terminology that originated with Unix, Linux, GNU, FOSS and Open Source, creeping into Microsoft PR and news releases...its comical! Guess they have realized that if you can not beat them, join them!

Its Ironic when their Copyright/Patent trolling legal business tactics bite them in the butt! And they can afford to pay, can't they!

If Microsoft never attempted these BS legal tactics with other players in the market, I would have sympathy, however that shipped sailed long ago. And that ship has sailed, many, many times. I hope Microsoft is held accountable, as they should be.