New Vista marketing push violates trademarks, or does it?
Yet again, Microsoft is receiving criticism for its latest marketing push, but not from consumers who don’t understand what they mean like with the Bill Gates, Seinfeld series. It seems the use of the “No Walls” subtext used in the newest commercials violate trademarks set forth by OS-startup “G.ho.st.” Or does it?
InfoWorld is reporting that the CEO of G.ho.st, a company that offers a “Virtual Computer” solution, sent Steve Ballmer a letter asking Microsoft to stop using the phrases "life without walls," "imagine without walls," and "imagine no walls" on its products, Web site, marketing materials, advertising, and other promotions- as well as agree in writing to stop using these phrases by the close of business last Thursday. Apparently, Microsoft doesn’t agree, as it’s still using the taglines in its advertisements.
A spokesman for Microsoft acknowledged that the company had received the letter, but stated the allegations have no merit what so ever. G.ho.st claims that it’s been using the phrase "no walls" in association with its product- which is a hosted OS that runs in a virtual environment and is what they call a "conceptual alternative to Windows," since the middle of last year. The company claims Microsoft’s latest round of advertisements for Vista are virtually identical to G.ho.st’s trademarks.
The trademark, however, is what might sink G.ho.st’s claim. According to the U.S. Patent and Trademark Office, G.ho.st hasn’t even officially trademarked the phrase yet, and worse yet, only filed an application to do so on the same day it sent Microsoft the letter. If this is true, all Microsoft has to do is stop using the phrase, or simply tweak it a tad to not be exactly the same. If G.ho.st had been smart about it, they would have waited for the trademark to come through, wait a while for Microsoft to use the phrase over and over, and then went after the company, but that wasn’t the case. The whole claim is now unsubstantiated. Seems to me G.ho.st just wanted some publicity on the heels of Microsoft’s newest ad campaign, but didn’t go about it in the right way.
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October 2nd, 2008
In trademark law you accumulate rights by virtue of use – with or without registration. When G.ho.st applied for a registration recently, it was applying to register legal rights in the trademark NO WALLS which G.ho.st had already accumulated by public use of the trademark NO WALLS since April 2007, that is 17 months before Microsoft first used it.
Clearly Microsoft have no right to use the same trademark (or minor variations) as a much smaller direct competitor, and even though we are much smaller we are entitled to protect our intellectual property.
Zvi Schreiber, CEO, G.ho.st