I wonder why people always start claiming their rights so late.
However, a trademark application for the name was not filed until May - when rumours about Microsoft's new product had already spread widely across the internet.
Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for "providing a website and website links to geographic information, map images and trip routing".
Aren't you obliged to protect your mark? Seems to me they have nothing on MS.
If Bing! can demonstrate prior art and public use of the trademark, they could potentially have some clout in court provided they have sufficiently deep pockets to sustain a few rounds of legal wrestling with Microsoft. If a business or trademark name is "deceptively or intentionally similar" to an established entity, it is technically in violation by definition.
That's part of what makes this case potentially meaningless, in a moral sense, not a case law sense... the fact that there are deep pockets involved and it may well be decided not on merits, but on who can throw enough money at protecting their interest.
always respect[s] trademarks and other people's intellectual property, and look[s] forward to the next steps in the judicial process.
So a moral vacuum soon filled by buckets of evil. Nature hates a vacuum and none is more easily filled than a vacuum in a courtroom. With buckets of evil. Got that?
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.
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 think the fact that we have three claimants, who apparently aren't suing each other, but are suing a multibillion dollar company for a quick buck does indicate what the real motives behind their trademark protection action are. I mean, all three are apparently in the same market as Microsoft's search engine, but they are not protecting their trademark from each other? Sounds like they forfeited their trademark. Or do you only need to protect your trademark from large companies with deep pockets?
by Anonymous Coward writes:
on Monday December 21, 2009 @10:28AM (#30511774)
If a business or trademark name is "deceptively or intentionally similar" to an established entity, it is technically in violation by definition.
The thing is that nobody had heard about Bing before MS. As such, MS wasn't trying to benefit from the fame that the name already had. If they began manufacturing footwear and chose Nike for their productname, I could see the motivation: Appearing to relate to an established entity in order to sell more. But creating a search engine called "Bing"? I don't think any of us had the first reaction of "Ah, like that Bing Information Designers?" but we all thought "Ah, what a stupid name.:D"
I'm not saying that MS didn't know of the company. They certainly should have researched more. But I can't understand why would they intentionally choose something deceptively similar to something that nobody had never heard of before. While MS knows that they can face anyone in court, I would assume their sizeable legal team had forced them to adopt strict and heavy processes to avoid this kind of stuff. To me this seems more like a fuckup committed by some very low level employees than anything decided by high management.
I am unsure if it is a matter of how famous the company is or how large they are.
I think it is a matter of: even in whatever city they are in, now when they even do something like put something in the classifieds or whatever they do, it will say Bing and people will directly think of Microsoft's Bing.
Unless you're talking about a different case it appears to be Sony Corp vs Sony's Restaurant. So it is the same name, although given that Sony Corp doesn't sell any food that I'm aware of I'm not sure why they got excited about it. http://www.encyclopedia.com/doc/1P2-1331412.html [encyclopedia.com]
That must be it. Seems like I read about it in late 90's, as an example of 'evil Sony' (likely in slashdot story). Coulda' sworn the defining bit that I remembered was the name being spelled differently but sounding the same.
Cool beans that you found the real details of it. Love the bit about her being pitted agains the maker of Watchmen's and Betamaxes.
In Canada, Mattel decided to sue Barby's Restaurant for the "Barbie" trademark. Barby's Restaurant was a Barbecue restaurant, and hence had nothing to do with Mattel's Barbie Dolls. The case went all the way to the Supreme Court, and Mattel lost.
The brief blurb I read, indicated the restaurant gave up in the U.S. case, as it couldn't afford the litigation. The cost of litigation was an issue in the Canadian case too. I think it was quite touch and go for the restaurant. Mattel, obviously, could afford
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 bu
The thing is that nobody had heard about Bing before MS.
I had. She's a friend of our family. "Bing" is a fairly common Chinese given name. And, come to think of it, lots of people have heard of Bing Crosby. I think that would be significant if this were about copyright, but as this is about a trademark I suspect it isn't.
I agree with everything except the "what a stupid name" part. When I first heard of that name for a search engine it gave me a case of the real LOLs. After all, naming it Bing Is Not Google (bing)? Hilarious! I would have thought more of the GNU crowd would by into a name like that...
No, they were obviously naming it after this Bing [wikipedia.org] (yes, you do have to (v)grep for "bing" in the list. I'm sorry that I can't help your laziness):
Bing talks extremely fast and often employs circular logic.
The Bing commercials are such obvious parodies of this!
The thing is that nobody had heard about Bing before MS
Certainly their customers had, and anyone who had ever visited their website or seen their website or heard of them via word of mouth. Are you saying that large companies should be allowed to freely take over trademarks used by very small companies, because, to use your term, "nobody" has heard of the majority of small companies? Fortunately trademark doesn't work the way you think it does; legitimate small companies thankfully also have the same right to trade under a mark without it being taken as large c
How do you know "nobody" has heard of Bing. Microsoft has offices in the same city (MS has offices in St. Louis which is where Bing Info is located) and the company in question has been around since at least 2000. From the companies web site:
Our work has appeared in projects for Time magazine, The Ford Motor Company, The National Geographic Society, America West Airlines, GlaxoSmithKline, The New York Times Company, Young & Rubicam, Chevron and Sprint.
So it sounds like they have had a fair amount of e
"The thing is that nobody had heard about Bing before MS."
I wouldn't know about that, chances are that before Microsoft announced Bing a search on google for "bing" and "design" would have brought up Bing Information Designers. Now it won't.
This is certainly damaging for the company, because every company remotely associated with IT and design/graphics should have a sound web identity.
So. There's damages, and Microsoft really could have researched more. Of course, a company should be proactive in prote
Not in the US... In the US trademarks can be common marks (such as just putting TM after your name) or registered marks. A mark must be registered to prevent others from using it (and note that your registration is typically limited to just one or two market areas). If you have used the name Bing for decades, but never registered it, Microsoft can still register the name - legally, regardless of your prior use - and exclude you from using it outside your geographical area. If I had used the name Microso
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".
Don't you at least need to assert an unregistered trademark with "TM" somewhere? Nowhere on the "Bing! Information Design" web page do I see a "TM". How would MS have known that "Bing!" was a trademark if there was no assertion? And wouldn't "Bing!" be different than "Bing"?
No, it's not required to put "TM" next to a trademark. While it might be harder to enforce trademark protection with some unregistered marks, the use of the primary identification component of a company's name is relatively easy (the relative word is the important one here, not the "easy") to defend. Usually unregistered trademarks are delineated by area of geographical influence. In this case, if Bing! IS wins their suit, Microsoft would be prevented from using the trademark within Bing! IS's area of geogr
An unregistered Trademark is usually enforcable only within a relatively small geographic area. They were not marketting their brand nationally, in fact , their brand has nothing to do with search or web design, their brand is not registered, in short, it fails virtually all of the tests needed to enforce an unregistered trademark.
This truly feels like yet another attempt to get free cash from Microsoft. IMHO they have a better chance of getting that cash from Bing Cashback purchases then from the lawsuit..
Because obtaining trademarks is costly and time-consuming
It's a few hundred dollars for the application fee if you do the work yourself. If you have someone else do it, it might be a few times that in many cases. Bing! Information Design likely spent far more working with an attorney to file this lawsuit then what it would have cost to get a trademark. And their company has been around since 2000 according to their site, so time-consuming really wasn't a factor either.
You are required to protect your trademark but the two companies have the trademark for different items.
THe company is sueing now because the amount of advertising Microsoft has put into the search engine Bing is causing confusion with the customers of the company that is sueing Bing. The time of the confusion is what would matter for the start of the lawsuit.
More to the point, it would be *really* hard to prove consumer confusion between a design firm and a Internet search engine, even if they were aggressively defending their trademark.
They are both computer software though, so Firebird (the database) had every right and obligation to protect their name. It's not like Firebird (the database company) was suing a mom & pop shop which makes handmade socks or sandwiches or something else in an unrelated industry.
I don't remember Firebird vs. Firebird as a legal case, bur rather as a PR case. And I was (and am) totally on Firebird's (the database) side, even though I've never used it. They had the name first.
Technically, I'm not sure they could have won a court case, as the two names WERE used in separate areas, but they should have been more respectful. FireFox, however, is a really nice name. (And, IIRC, Firefox changed it's name from Phoenix to Firebird because of a legal suit, so that may be what you're reme
More to the point, it would be *really* hard to prove consumer confusion between a design firm and a Internet search engine, even if they were aggressively defending their trademark.
Yes, because an ad campaign of "Go to Bing for all your web needs" and "Go to Bing for all your web needs" would be completely unrelated. They are two "web services" that have the same name. And apparently Microsoft found out about the little one and decided they didn't have to act. They either predicted the suit and expect
I wonder why people always start claiming their rights so late.
It is not easy to file a law suit. It takes you away from focusing on your main business. You need to figure out if it is worth to do. You need to get some facts that you are sure that your case has merit and will not immediately thrown out. And lastly, the lawyers like to earn as much as possible;)
I'm not a fan of IP -- it's like patenting math, and many trademarks are not far behind. But, Microsoft has used it's legal muscle and deep pockets to outlast others who have had "valid" (in the sense of legally valid in this system) trademarks and IP patents.
MS wants to have their cake and eat it, too. OTOH they patent things like using a password to get administrative authority (sounds like sudo to me), on the other hand, their SQLServer DB was so similar to Sybase that use could actually use the same dri
I wonder why people always start claiming their rights so late.
I'm not a patent/trademark lawyer nor have I ever gone through the process but I'd imagine that if they filed it in May, they didn't get it until a few months later. Upon receiving the trademark, they then proceeded to consult a lawyer and build a case that they could take to court. All that takes a substantial amount of time. Doesn't seem to me like these guys took their time. If this was 2011, however, I'd agree with you.
"The hands that help are better far than the lips that pray."
-- Robert G. Ingersoll
Trapped! (Score:5, Insightful)
However, a trademark application for the name was not filed until May - when rumours about Microsoft's new product had already spread widely across the internet.
Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for "providing a website and website links to geographic information, map images and trip routing".
Aren't you obliged to protect your mark? Seems to me they have nothing on MS.
Re: (Score:1, Interesting)
Re:Trapped! (Score:5, Insightful)
That's part of what makes this case potentially meaningless, in a moral sense, not a case law sense ... the fact that there are deep pockets involved and it may well be decided not on merits, but on who can throw enough money at protecting their interest.
Re: (Score:2, Troll)
always respect[s] trademarks and other people's intellectual property, and look[s] forward to the next steps in the judicial process.
So a moral vacuum soon filled by buckets of evil. Nature hates a vacuum and none is more easily filled than a vacuum in a courtroom. With buckets of evil. Got that?
Re:Trapped! (Score:5, Informative)
"Prior art" is not a trademark-related term.
Re: (Score:2)
Re: (Score:3, Informative)
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 kn
Re: (Score:3, Insightful)
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 think the fact that we have three claimants, who apparently aren't suing each other, but are suing a multibillion dollar company for a quick buck does indicate what the real motives behind their trademark protection action are. I mean, all three are apparently in the same market as Microsoft's search engine, but they are not protecting their trademark from each other? Sounds like they forfeited their trademark. Or do you only need to protect your trademark from large companies with deep pockets?
But why would it be intentionally similar? (Score:5, Insightful)
If a business or trademark name is "deceptively or intentionally similar" to an established entity, it is technically in violation by definition.
The thing is that nobody had heard about Bing before MS. As such, MS wasn't trying to benefit from the fame that the name already had. If they began manufacturing footwear and chose Nike for their productname, I could see the motivation: Appearing to relate to an established entity in order to sell more. But creating a search engine called "Bing"? I don't think any of us had the first reaction of "Ah, like that Bing Information Designers?" but we all thought "Ah, what a stupid name. :D"
I'm not saying that MS didn't know of the company. They certainly should have researched more. But I can't understand why would they intentionally choose something deceptively similar to something that nobody had never heard of before. While MS knows that they can face anyone in court, I would assume their sizeable legal team had forced them to adopt strict and heavy processes to avoid this kind of stuff. To me this seems more like a fuckup committed by some very low level employees than anything decided by high management.
Re: (Score:1, Funny)
"That's a good name, let's steal like we do all our IP"
Re: (Score:2, Funny)
"That's a good name, let's steal like we do all our IP"
Yeah, but... Bing? That's like breaking into Fort Knox so that you can steal paper clips.
Re: (Score:2)
Re:But why would it be intentionally similar? (Score:5, Funny)
Re: (Score:3, Interesting)
I think it is a matter of: even in whatever city they are in, now when they even do something like put something in the classifieds or whatever they do, it will say Bing and people will directly think of Microsoft's Bing.
I could see that hurting business.
Re:But why would it be intentionally similar? (Score:5, Interesting)
But then again, Sony sued Sonny's Restaurant in Boston (I think), because people were pronouncing it 'so-nee'. Sony won.
Ok, this might only relate tangentially to the story but I still think it's funny in a flat cat kinda' way.
Re: (Score:2)
I'm expecting Dave Bing (formerly of the Detroit Pistons and Bing Steel) to chime in on this, as well as the estate of Bing Crosby. :)
Re: (Score:2)
Ooh, I want to see the cartoon Bing burst out with White Christmas. That'll show 'em!
Re: (Score:3, Interesting)
Re: (Score:2)
That must be it. Seems like I read about it in late 90's, as an example of 'evil Sony' (likely in slashdot story). Coulda' sworn the defining bit that I remembered was the name being spelled differently but sounding the same.
Cool beans that you found the real details of it. Love the bit about her being pitted agains the maker of Watchmen's and Betamaxes.
Re: (Score:2)
In Canada, Mattel decided to sue Barby's Restaurant for the "Barbie" trademark. Barby's Restaurant was a Barbecue restaurant, and hence had nothing to do with Mattel's Barbie Dolls. The case went all the way to the Supreme Court, and Mattel lost.
The brief blurb I read, indicated the restaurant gave up in the U.S. case, as it couldn't afford the litigation. The cost of litigation was an issue in the Canadian case too. I think it was quite touch and go for the restaurant. Mattel, obviously, could afford
Re: (Score:3, Informative)
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 bu
Re: (Score:2)
The thing is that nobody had heard about Bing before MS.
I had. She's a friend of our family. "Bing" is a fairly common Chinese given name. And, come to think of it, lots of people have heard of Bing Crosby. I think that would be significant if this were about copyright, but as this is about a trademark I suspect it isn't.
Re: (Score:3, Interesting)
Re: (Score:2)
No, they were obviously naming it after this Bing [wikipedia.org] (yes, you do have to (v)grep for "bing" in the list. I'm sorry that I can't help your laziness):
Bing talks extremely fast and often employs circular logic.
The Bing commercials are such obvious parodies of this!
Re: (Score:2)
Not me. I thought "Chandler Bing" then the "ah, what a stupid name."
I thought it was a joke at first. Seriously.
Oh and ....
Bing
Is
Not
Google
Re: (Score:2)
The thing is that nobody had heard about Bing before MS
Certainly their customers had, and anyone who had ever visited their website or seen their website or heard of them via word of mouth. Are you saying that large companies should be allowed to freely take over trademarks used by very small companies, because, to use your term, "nobody" has heard of the majority of small companies? Fortunately trademark doesn't work the way you think it does; legitimate small companies thankfully also have the same right to trade under a mark without it being taken as large c
Re: (Score:1)
How do you know "nobody" has heard of Bing. Microsoft has offices in the same city (MS has offices in St. Louis which is where Bing Info is located) and the company in question has been around since at least 2000. From the companies web site:
So it sounds like they have had a fair amount of e
Re: (Score:2)
I wouldn't know about that, chances are that before Microsoft announced Bing a search on google for "bing" and "design" would have brought up Bing Information Designers. Now it won't.
This is certainly damaging for the company, because every company remotely associated with IT and design/graphics should have a sound web identity.
So. There's damages, and Microsoft really could have researched more. Of course, a company should be proactive in prote
Re: (Score:1)
They probably should have googled if the name had already existed.
Re: (Score:2)
Re: (Score:2)
Bing! did purchase bing.biz back in 2001 [whois.net], so I'd say that's prior art, although bing.com has been registered since 1996 [whois.net], but bing.com use to be some kind device that notifies you of cellphone calls [whois.net](more info [archive.org]) so that certainly wasn't conflicting with a web design site.
I can understand why they'd want to sue, after all whenever you search for bing all you ge
Re:Trapped! (Score:5, Informative)
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: (Score:2)
Re: (Score:2)
No, it's not required to put "TM" next to a trademark. While it might be harder to enforce trademark protection with some unregistered marks, the use of the primary identification component of a company's name is relatively easy (the relative word is the important one here, not the "easy") to defend. Usually unregistered trademarks are delineated by area of geographical influence. In this case, if Bing! IS wins their suit, Microsoft would be prevented from using the trademark within Bing! IS's area of geogr
Re: (Score:2)
ID. Bing! ID. I apparently am not to be trusted with remembering simple things from one moment to the next. Carry on!
Re: (Score:1)
An unregistered Trademark is usually enforcable only within a relatively small geographic area. They were not marketting their brand nationally, in fact , their brand has nothing to do with search or web design, their brand is not registered, in short, it fails virtually all of the tests needed to enforce an unregistered trademark.
This truly feels like yet another attempt to get free cash from Microsoft. IMHO they have a better chance of getting that cash from Bing Cashback purchases then from the lawsuit..
Re: (Score:2)
It's a few hundred dollars for the application fee if you do the work yourself. If you have someone else do it, it might be a few times that in many cases. Bing! Information Design likely spent far more working with an attorney to file this lawsuit then what it would have cost to get a trademark. And their company has been around since 2000 according to their site, so time-consuming really wasn't a factor either.
Re:Trapped! (Score:4, Insightful)
THe company is sueing now because the amount of advertising Microsoft has put into the search engine Bing is causing confusion with the customers of the company that is sueing Bing. The time of the confusion is what would matter for the start of the lawsuit.
Re: (Score:1)
"Christmas has no place at a United Nations event" -- UN Official
This was overheard at the Chanukah party
Re: (Score:2)
More to the point, it would be *really* hard to prove consumer confusion between a design firm and a Internet search engine, even if they were aggressively defending their trademark.
Re: (Score:2)
They are both computer software though, so Firebird (the database) had every right and obligation to protect their name. It's not like Firebird (the database company) was suing a mom & pop shop which makes handmade socks or sandwiches or something else in an unrelated industry.
Re: (Score:2)
I don't remember Firebird vs. Firebird as a legal case, bur rather as a PR case. And I was (and am) totally on Firebird's (the database) side, even though I've never used it. They had the name first.
Technically, I'm not sure they could have won a court case, as the two names WERE used in separate areas, but they should have been more respectful. FireFox, however, is a really nice name. (And, IIRC, Firefox changed it's name from Phoenix to Firebird because of a legal suit, so that may be what you're reme
Re: (Score:2)
Yes, because an ad campaign of "Go to Bing for all your web needs" and "Go to Bing for all your web needs" would be completely unrelated. They are two "web services" that have the same name. And apparently Microsoft found out about the little one and decided they didn't have to act. They either predicted the suit and expect
Re: (Score:1)
I wonder why people always start claiming their rights so late.
It is not easy to file a law suit. It takes you away from focusing on your main business. You need to figure out if it is worth to do. You need to get some facts that you are sure that your case has merit and will not immediately thrown out. And lastly, the lawyers like to earn as much as possible ;)
Re: (Score:2)
Re: (Score:2)
I'm not a fan of IP -- it's like patenting math, and many trademarks are not far behind. But, Microsoft has used it's legal muscle and deep pockets to outlast others who have had "valid" (in the sense of legally valid in this system) trademarks and IP patents.
MS wants to have their cake and eat it, too. OTOH they patent things like using a password to get administrative authority (sounds like sudo to me), on the other hand, their SQLServer DB was so similar to Sybase that use could actually use the same dri
Re: (Score:2)
I wonder why people always start claiming their rights so late.
I'm not a patent/trademark lawyer nor have I ever gone through the process but I'd imagine that if they filed it in May, they didn't get it until a few months later. Upon receiving the trademark, they then proceeded to consult a lawyer and build a case that they could take to court. All that takes a substantial amount of time. Doesn't seem to me like these guys took their time. If this was 2011, however, I'd agree with you.