Bing! Suing Microsoft for Copyright Infringement.

[morestar]

So if I'm correct in my knowledge of copyright laws this could mean the end of Bing from Microsoft.

Apparently there is a company St. Louis U.S.A. (Ars Technica) that has been using the trademark 'Bing' for over ten years.

You can read the press release on this issue to find out more.

If anyone knows the ins and outs of copyright laws, tell me, will this lawsuit fly? Is Microsoft's Bing dead?

I'd like to know!

[sofakingdabest1]

Usually the same names in 2 different types of industry is not copyright infringe. St. Louis Bing is design, MS Bing is search. It's a shakedown. MS is a deep pocket. MS will settle. Pay a license fee. "Bing bing bing. Ricochet Rabbit."

Also. Do ya see the irony here? Did MS Bing do a "search" of that name during their planning stages? Doh!

[Clarrie]

Usually the same names in 2 different types of industry is not copyright infringe. St. Louis Bing is design, MS Bing is search. It's a shakedown. MS is a deep pocket. MS will settle. Pay a license fee. "Bing bing bing. Ricochet Rabbit."

Also. Do ya see the irony here? Did MS Bing do a "search" of that name during their planning stages? Doh!

Using it for 10 years eh? "Bing! Information Design is an Internet-related company that creates interactive and computer-related illustrations, designs, interactive graphics, animations, technical diagrams and related services"?

So, I'm a bit puzzled by the website link from the press release ... www bing biz - domain registered in November, contact details in Madeira, all crawler access blocked by robots.txt ...

If they were an "Internet related company", would have thought they would have been a bit quicker to get their website launched?

Trademark application in May 2009 ...

All sounds like a bit of legal opportunism to me.

[morestar]

Usually the same names in 2 different types of industry is not copyright infringe. St. Louis Bing is design, MS Bing is search. It's a shakedown. MS is a deep pocket. MS will settle. Pay a license fee. "Bing bing bing. Ricochet Rabbit."

Also. Do ya see the irony here? Did MS Bing do a "search" of that name during their planning stages? Doh!

So what you are saying is I can start manufacturing and selling Google Running Shoes?

[ronchalice]

So what you are saying is I can start manufacturing and selling Google Running Shoes?

If you have large enough cojones and enough pocket change to put a good IP attorney on retainer it might be worth the risk.

[deepsand]

There are presently 105 USPTO live filings for "bing," most of which pre-date those of either of the litigants under discussion.


Bing! Information Design LLC filed for "Bing!" on May 26, 2009, as both a Trademark And a Service Mark, Serial No. 77744847, for use relating to

"IC 016. US 002 005 022 023 029 037 038 050. G & S: Illustrations; Printed visuals in the nature of information graphics, charts, maps; Stories in illustrated form."

and

"IC 035. US 100 101 102. G & S: Advertising agencies, namely, promoting the goods and services of others; Advertising and promoting the goods and services of a visual artist; Advertising particularly services for the promotion of goods; Advertising services, namely, creating corporate and brand identity for others; Advertising services, namely, creating corporate logos for others; Advertising services, namely, production of special effects including model-making services, computer-generated imagery and computer-generated graphics for the production of commercials; Advertising via electronic media and specifically the internet; Design of advertising flyers for others; Design of advertising materials for others; Design of internet advertising; Providing advertising services using 3D and animation designs."


Microsoft Corp. filed twice on March 2, 2009, Serial Nos. 77681498 & 77681512, for the Trademark "BING;" once for

"IC 039. US 100 105. G & S: providing a web site and web site links to geographic information, map images, and trip routing"

and, also for

"IC 009. US 021 023 026 036 038. G & S: computer search engine software; graphical user interface software, namely, toolbar software for use with search engine software and websites

IC 035. US 100 101 102. G & S: advertising services; dissemination of advertising for others via the Internet; providing consumer product information via the Internet; advertising and directory services, namely, promoting the goods and services of others by providing a website featuring links to the websites of others; providing online directory services featuring business and personal directory information; providing an Internet website featuring news and information in the fields of national and international politics and business

IC 038. US 100 101 104. G & S: telecommunication services, namely, receipt and delivery of information, messages, documents, images and other data by electronic transmission; streaming of audio and video on the Internet

IC 041. US 100 101 107. G & S: education, namely, providing training and tutorials in the field of computer searching and online advertising; entertainment services, in the nature of providing online news and information in the fields of entertainment, education, pop culture, cultural activities and exhibitions, sports, and other non-business and non-commercial fields, namely, games, music, literature, the arts, television, films and performance art

IC 042. US 100 101. G & S: computer services, namely, providing search engines for obtaining data on a global computer network."


Bing! Information Design's claim rests solely on its first having used "bing" in commerce on April 1, 2000; however, such first usage alone is not sufficient to support their claim.

Given that they did not enter the on-line arena until last month, and as, by their own filing, their services are quite unlikely to be to confused with those of Microsoft, their claim is little more than a lawyer's pipe dream.

There is no reason for Microsoft to here settle.

[morestar]

Bing! Information Design's claim rests solely on its first having used "bing" in commerce on April 1, 2000; however, such first usage alone is not sufficient to support their claim.

Given that they did not enter the on-line arena until last month, and as, by their own filing, their services are quite unlikely to be to confused with those of Microsoft, their claim is little more than a lawyer's pipe dream.

There is no reason for Microsoft to here settle.

Thank you deepsand...as usual you've got some great answers and insights.

[cw1865]

Bing! Information Design's claim rests solely on its first having used "bing" in commerce on April 1, 2000; however, such first usage alone is not sufficient to support their claim.

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

Given that they did not enter the on-line arena until last month, and as, by their own filing, their services are quite unlikely to be to confused with those of Microsoft, their claim is little more than a lawyer's pipe dream.

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."

There is no reason for Microsoft to here settle.

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.....

[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.

[bmontecastro]

whew..can someone explain me what is going on between this two?