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Finally, someone sues Microsoft for Bing's name
It's the kind of news that warms me in both weird and wonderful ways. First, it reminds us all that capitalism is working as intended -- then it also reminds me just how much I love living in a non-litigious country like the United Kingdom. Bing!™ isn't even in the same sector as the same-sans-exclamation-named search engine -- they do graphic frickin' design.
The thing is, as crazy as it sounds, they actually stand a chance of winning the case and claiming juicy punitive damages. I don't know if the US trademark system is the same as the UK, but trademarks here are 'categorized', with technology-related stuff mostly lumped into the same category -- it would be OK to have Bing the ship-maker and Bing the search engine, but two Bings involved with online business... I'm not so sure.
Maybe they'll be forced to rename to, in my opinion, the much better name of 'Ping!' -- exclamation point and all. [Or, if there are any gamers out there, how about 'Ding!']
[via CNET]
Comments
21
Subscribe to commentsgojedaDec 21st 2009 8:25AM
Or, perhaps, the St. Louis Bing is being hit hard by the economy and decided to see if they can win the proverbial lottery (in the form of a payout to go away) by suing the Redmond Bing!
Seeing as they do not have a case here though, I think the St. Louis Bing is going to be sorely disappointed with the outcome.
dpamacDec 21st 2009 8:55AM
As a lifetime resident of St. Louis who actually makes a living hiring designers and writers I can say that I am officially confused by the lawsuit. Mainly because I've never heard of an STL design firm named Bing.
Sebastian AnthonyDec 21st 2009 9:25AM
I guess that's the most important issue here -- whether people actually get the two companies confused.
If a resident of St Louis doesn't... we must be talking about a few dozen people at best.
Damn Bing!! (one exclamation is the name, the other is my anger).
melloncollieDec 21st 2009 8:52AM
http://www.youtube.com/watch?v=7GM4Lt5k24s
Sebastian AnthonyDec 21st 2009 9:23AM
I was watching that as I wrote this story...!
I hope it's true.
intellerDec 21st 2009 8:53AM
Bing! should be sued for crappy graphic design. That junk is pretty insulting to graphic designers everywhere. And they have a .biz domain....if they were first, how come they didn't get .com? They are so going to lose.
Sebastian AnthonyDec 21st 2009 10:28AM
Regarding the domain name -- it was first registered in 1996.
Who knows if that's when the name 'Bing', as a search engine, was actually submitted as a trademark.
The whole '.com' thing has been an issue for a long time. It's basically first-come-first-serve nowadays.
mrshlDec 21st 2009 9:19AM
Non-litigious society like the UK? Are you serious?
You realize that foreigners flock to the UK to take advantage of both their anti-speech libel laws and their liberal divorce laws which are notoriously unfriendly when one spouse is very wealthy. You're a haven for forum shoppers who don't like the laws in their own countries.
Not suggesting UK is a horrible place to live or anything. Just pointing out that it's a far piece away from being non-litigious.
Sebastian AnthonyDec 21st 2009 9:22AM
Sorry, I should've specified it as 'a country where people are slightly more conservative when it comes to suing for damages'.
The UK certainly has plenty of legal issues :)
kmessina2004Dec 21st 2009 10:21AM
Ok heres the deal...from a graphic design standpoint, if they do any type of web design or basically anything web related then "BIng!" has broken the law in the U.S., however from a legal business standpoint there are several factors that go into it 1. "Bing!" is not "Bing".... that "!" does make a difference. 2 "Bing!" probably has a global trademark, most business names are local trademarks...look up how many "John's Place" there are in different state in the restaurant business...tons 3. What are you serious?!?!?! "Bing" must really be dying for some P.R.
smokingplatypusDec 21st 2009 11:59AM
No longer news, more old hat. But that aside, really you must have a personal distaste for M$FT.
I have to agree with inteller, if they were first; why did they not get the *.com domain? They will lose, even if Bing!'s success is hurting Bing, LLC's; first come, first own.
ronmosesDec 21st 2009 1:43PM
Here's something you have to understand about trademark law in the US... if you don't defend it, you lose it. Selective defense of a trademark is not permitted.
Let's say Bing! decides not to file suit against Microsoft. Clearly there is grounds for a suit, whether or not there is any chance for success; the two names are practically identical. Bing! may not even *want* to sue Microsoft, knowing full well that no one is going to confuse the two. So they don't pursue it.
Five years down the road, another company comes along with a product called Bing and this time it's a lot closer to Bing!'s domain. (We'll set MS's interest aside for the moment, just to keep it simple.) So Bing! sues Bing. Bing says to the judge, "Look your honor, Bing! clearly neglected to defend their trademark against Microsoft, therefore under US law they have essentially abandoned their right to it." And under US law, they would be correct, and they would very likely win the case.
So when Apple takes some orchard farmer to court for having a logo that looks too much like theirs, it's not because they're trying to be dicks. The law requires it.
Sebastian AnthonyDec 21st 2009 5:56PM
Thanks for the clarification :)
Curious that they didn't decide to defend against it until now though -- Bing's been big'ish for a year or so, right?
gojedaDec 25th 2009 7:25PM
Sorry, but this is incorrect. There is no sort of magical "time limitation" on defending trademarks. There is no such limitation defined in US trademark statutes, so I would say that your take is pure conjecture.
It is probably worth noting that MS's Bing went live in the beginning of June, 2009. MS's lawyers are not going to use, as a basis of defense, that it took St. Louis Bing over 6 months to realize that the infringement. The court simply would not care.
ronmosesDec 25th 2009 7:34PM
Nobody said anything about a time limitation. I have no idea where you got that from, but it couldn't be farther from the point I was making. Let me try again...
Trademarks cannot be defended selectively. If you sue someone for trademark infringement and the defendant can demonstrate that you willfully neglected to defend you trademark in the past, you will lose. "Willfully neglected" in this context means that you were aware of the infringement, aware of your rights in the matter, and chose not to exercise them. Your earlier decision not to defend the trademark serves as legal precedent, indicating your valuation of your trademark at zero.
gojedaDec 26th 2009 12:25AM
Absolutely, 100% wrong. Legal precedent can only (and I mean ONLY) be established from a legal case (in other words, a court case that has been decided) that establishes legal principle. Precedent CANNOT be derived from a company sitting on its hands unproductively protecting its trademark. The latter is totally meaningless to the court and, therefore, would not be considered.
I repeat, the courts do NOT care if the plaintiff did not choose to act at a previous point in time, even if they fully realized that, perhaps, there was an infringement.
Furthermore, the courts do NOT care if you selectively exercise your rights or not. It is up to the company in question whether they chose to exercise their legal rights or not, not the courts. This means that St. Louis Bing can selectively chose to sue (hypothetically here) an TV-set top box outfit called "Bing" but not chose to sue the Microsoft Bing. No rights are abridged here on the part of the St. Louis Bing.
This is not an "all or nothing" proposition here.
ronmosesDec 25th 2009 11:56PM
Failure to enforce the registration of a trademark in the event of infringement *may* expose the registration to removal from the register after a certain period of time due to technical "non-use."
Now... you are correct that a company may choose not the enforce the registration if they feel they can demonstrate that they did not consider the infringement significant or consequential enough to pursue. However, that is a big if, and most corporate legal departments (I'm looking at you, Apple) don't care to deal in big ifs.
In addition, a trademark owner can only pursue action against the infringing party as long as it hasn't previously notified the third party of its discontent and then failed to take action within a reasonable period of time (known as "acquiescence"). So a C&D from legal, not followed up promptly with more direct action, opens the mark to a non-use argument and possible removal from the register.
So in essence, the trademark holder must not only be certain the infringement will be seen as inconsequential by the courts, but the holder also must not have formally contacted the party in regards to the alleged infringement without then following up with legal action. If it's obviously no big deal, and they keep their mouth shut about it, then yes you are correct, the holder's trademark should remain valid. But only under those circumstances. Your corporation's legal department will make that call within the limits of their own comfort.
gojedaDec 26th 2009 3:08PM
***
"Failure to enforce the registration of a trademark in the event of infringement *may* expose the registration to removal from the register after a certain period of time due to technical "non-use."
***
Care to cite an example where a registered trademark is invalidated because the holder was not "aggressive" enough to pursue infringement in a court of law?
I am not sure why you are citing Apple here. While I believe most anyone would agree Apple is militant about its trademarks (as most well-run companies are), that diligence does not win them brownie points in court or under the law - and it does not "swing" decisions in Apple's favor. What wins cases for Apple is, simply, because Apple has a legitimate complaint. This is, assuming of course, that a C&D has not scared the accused infringring from desisting.
Finally, as I sure you know, a C&D is not a prerequisite in order to bring a case to court. A C&D just shows that reasonable effort has been made to remedy the situation before litigation begins.
JDogDec 21st 2009 5:44PM
Who really cares? Online search engine is not the same as a graphic designer. Get real already!
The best thing about this story is the great winter picture. Where do I find it?
Sebastian AnthonyDec 21st 2009 5:55PM
Hit Bing and start mashing F5!