Bing! Suing Microsoft for Copyright Infringement.

[nickey2009]

sorry i typed brother in arms but in hindi which is my local language it means brothers fighting with each other,though it is not a correct word to express it..

[deepsand]

True, not in itself, but being first doesn't hurt them that is for sure and while registration will afford you oodles and oodles of remedies (including the potential for treble damages), they can accrue common law rights

What is interesting about the 'likelihood of confusion' standard is that it is a 'mixed' question of law and fact. Questions of law being for judges, questions of facts being for juries (or the fact finder, ie. a judge in a bench trial)

"In its lawsuit, Bing! Information Design alleges that Microsoft infringed on its trademark when it started using Bing for its search engine. The plaintiff alleges that the name causes confusion with regard to the relationship between the plaintiff and the defendant, confuses the public with regard to the origin of the plaintiff’s services and dilutes the value of the plaintiff’s trademark. The plaintiff also claims that Microsoft knew of plaintiff’s trademark rights in the name before using the mark Bing."

This can be as much an economic question as a legal one, but what if the reverse were the case, what if MSN brought suit later claiming that this company were trading off of Bing!'s trade-name.....?

Here are some factors that courts consider as to whether a TM infringement creates a 'likelihood of confusion'

In determining likelihood of confusion, courts evaluate several factors. No one factor is determinative in and of itself, and how important one factor is over another is very case specific. The factors are:

• Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services. Even where the plaintiff's products are not exactly similar, the court may in some cases consider how likely the plaintiff is in the future to sell similar products.
• Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
• Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
• Whether the marks are similar in appearance, phonetic sound, or meaning.
• How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer (e.g. business owners versus children), or the more expensive the product, then the more discriminating the consumer is expected to be, and the less likely confusion will be attributed to them).
• Whether or not the companies are accessing overlapping customer bases. If the companies both sell largely to senior citizens, to teachers, or to home-based business owners, there is more likely to be consumer confusion.
• The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
• Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.

Now, of course, Bing! Information has filed a TM registration SUBSEQUENT to MSN's (this fact does not help them obviously), but the registrations definitely have some overlap {Guaranteed that registration was calculated specifically for purposes of the lawsuit itself}, so really the question is whether the use by Bing! Information PRIOR to MSN's would create a likelihood of confusion.

A Plaintiff's whore is going to count on the fact that a jury is going to come back with an 'f-u Bill ruling'

Is that so unimaginable......Of course since the question is a MIXED question of law and fact (whether a likelihood of confusion exists), MSN could appeal and the appeals court could overturn on the 'clearly erroneous' standard.....

In all regards, quite right.

My point was not to suggest that this is a slam-dunk for MS; but, that it is far from so being for Plaintiff.

[deepsand]

sorry i typed brother in arms but in hindi which is my local language it means brothers fighting with each other,though it is not a correct word to express it..

Thank you for clarifying that.

In English, the better translation would be "at arms."