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Stupid Move on the Part of Microsoft?


http://www.cnn.com/2004/TECH/internet/01/19/offbeat.mike.rowe.soft.ap/index.html

"Rowe, a 17-year-old high school senior and Web designer from Victoria, has angered the software giant by registering an Internet site with the address www.MikeRoweSoft.com .

'Since my name is Mike Rowe, I thought it would be funny to add 'soft' to the end of it,' said Rowe.

Microsoft, however, is not amused."

*  *  *  *  *  *  *  *  *  *

I guess I just don't understand corporate legal-types.  Is it just me, or does it seem insane for MS to bring all of its forces to bear on a goofy high school kid?  Can they not see what a public relations disaster this is?  It's not like they're incredibly popular to begin with.

But maybe I'm wrong.  Is there really a pressing reason that would force MS into creating such bad press for themselves?

anon
Monday, January 19, 2004

"MS to bring all of its forces to bear "

I wouldn't call it all their forces... they have like a bajillion employees.  This is probably being handled by a department staffed with interns.


Monday, January 19, 2004

The really stupid part was the kid putting up the site in the first place, then asking for 10K to give it up.  Of course we all do stupid things when we're 17.


Monday, January 19, 2004

>> "The really stupid part was the kid putting up the site in the first place, then asking for 10K to give it up.  Of course we all do stupid things when we're 17."

Don't see how it was stupid on the kid's part.  He's got more publicity now than corporations a hundred times the size of his, and no matter what happens in court, people love David and despise Goliath.  He could parlay this thing into something fantastic, and Bill Gates will simply look more like the tyrant he's purported to be.

anon
Monday, January 19, 2004

Microsoft has to protect its trademark. I'm sure they were aware of the potential for bad publicity, but they have no choice but to protect the trademark.

Nate Silva
Monday, January 19, 2004

Sure it's a stupid move on the part of some nameless drone somewhere in Microsoft (I'm curious how they even knew that he registered it -- are they soundexing some feed of domain entries? I'm really curious about that. I highly doubt he had such a buzz that they heard it on the street), but it's also rather silly to blow this out of proportion: I doubt Gates and Co are down in the bunker planning how to respond, and the likely next step would be that this would fizzle into inaction until one day when Mr. Rowe got bored and moved on.

Microsoft has very little of a case, regardless -- Is anyone seriously going to confuse MikeRoweSoft with Microsoft? Secondly Mike Rowe obviously isn't domain squatting given that it's his frickin' name -- I find it fascinating, though, how it's often cast as some sort of `proof' of squatting if you offer up a price that you're willing to part with the domain for: That's standard commerce, and is proof of nothing more than good business sense. The fact that big cos have convinced people that this is evil (and the post.COM person-on-the-street cynics eagerly grabbing and pulling their lobster brethen back down eat it up)

I really believe that there needs to be corporate penalties that any company that engages in frivilous or without-merit legal threats, hoping that the appearance of being a big company with lots of big mean lawyers will get their way, should be slapped with massive fines.

Dennis Forbes
Monday, January 19, 2004

I'm going to change my last name to Windows and name my three sons Microsoft. After Jr, instead of using numbers we're going to use letters... Me and XP spring to mind.

Suck on that one Bill Gates.

www.MarkTAW.com
Monday, January 19, 2004

> Microsoft has very little of a case, regardless -- Is anyone
> seriously going to confuse MikeRoweSoft with Microsoft?

Say them both out loud and I can't tell the difference!

Also note, he's running a business called MikeRoweSoft, it's not satire and it's not a knitting club.

Nate Silva
Monday, January 19, 2004

He said $10k after they said $10.  I think it was a bit of hyperbole, but $10 was (probably intentionally) insulting.

As I understand it, an insultingly low number is a tactic used to make the other party put out a larger number, to show them in 'bad faith.'

H. Lally Singh
Monday, January 19, 2004

A better retort would have been $10 billion, and print it on Dr. Evil stationary. Now it sounds like he actually wanted that money.

www.MarkTAW.com
Monday, January 19, 2004

Folks who write these stories and get caught up in them generally don't understand trademark law (for example, the CNN article referred to it as a "copyright" which it isn't, it's a trademark).

Trademark law *requires* the trademark holder to make a good faith effort to stop people from infringing on their trademark. If you fail to do this too often, you can lose your trademark.

So big companies sending scary cease-and-desist letters to teenagers are only doing it because otherwise when some big Taiwanese company named Mikrosoft introduced Mikrosoft Windowz, Microsoft would not have any recourse and Mikrosoft could claim that the trademark was lost because Microsoft failed to enforce it.

Often the big companies couldn't care less if you actually respond to the cease and desist letter, they just need to know that you got it. But if Microsoft knowingly let someone use their trademark it could be lost.

Joel Spolsky
Monday, January 19, 2004

I think they might be thinking of the voice recognition market also.

Stephen Jones
Monday, January 19, 2004

The article said they are accusing him of copyright infringement. Don't they mean trademark infringement?

I think Microsoft has been one of the better companies in the whole domain name issue. Look at Excel.com. They could have taken over that but I don't think they ever tried. On the other hand, you have the guy whose last name was Newton and registered Newton.com and got shut down by Apple.
The only reason the kid chose this name is because it sounds like Microsoft.

Bill K
Monday, January 19, 2004

Err, Bill, the kid didn't choose his name; his parents did.

Stephen Jones
Monday, January 19, 2004

Err  ,

He was talking about the domain name, not his name ;-)

Karthik
Monday, January 19, 2004

Microsoft doesn't own a trademark on "Excel." Citibank does, I think, for an online banking product from the 1980s that has been defunct for twenty years now.

In Microsoft documentation, Excel will always, without exception, be referred to as "Microsoft Excel."

Joel Spolsky
Monday, January 19, 2004

He chose to put -soft to the end of his name and register that.  If he had registered MikeRowe.com this probably wouldn't be an issue.


"I really believe that there needs to be corporate penalties that any company that engages in frivilous or without-merit legal threats, hoping that the appearance of being a big company with lots of big mean lawyers will get their way, should be slapped with massive fines. "

The sad part is some lawyer will probably contact the kid and offer to take his case, hopping that Microsoft will settle for a significant sum. 

Bill K
Monday, January 19, 2004

Everything that's been said about trademark law is true but very, very depressing.  An example:

A few weeks ago Private Eye printed a story about a school in such disrepair that the children where housed in "portakabins".  They then received a letter from a trademark officer working for Portakabin asking them to desist from using portakabin as a generic word for portable building as it was a trademark and should only be used to refer to the brand. 

The Eye printed his letter in full on the letters page.  THey'd entitled every other letter on the page "Portakabin". 

His letter was entitled "What a tragic way to make a living".

a cynic writes...
Monday, January 19, 2004

Does anyone remember hearing about similar cases with Microsoft and domain names? In the mid 90's I read about lots of disputes, including the previously mentioned Newton case, but I don't think I ever heard about Microsoft going after anyone before.

Come to think of it, Joel, were you at Juno when the Juno vs. Juno case was going on?

Bill K
Monday, January 19, 2004

The site's down, but you can look at it through the Google cache:

http://216.239.37.104/search?q=cache:FSp2EjIGGqwJ:www.mikerowesoft.com/+mikerowesoft&hl=en&lr=lang_en&ie=UTF-8

(As a side note, when you search for "MikeRoweSoft" Google will helpfully ask "Did you mean: microsoft?")

Regarding the trademark issues, there's only infringement if there's a "likelihood of confusion" between Microsoft and MikeRoweSoft -- basically a common-sense test about whether people might assume that the kid's website/business is associated with or sponsored by Microsoft.  IMO, it should be painfully obvious to people visiting the site that it has no relationship with Microsoft,  that it's just making a play on words (the kid's name.) 

Yes, you can lose your trademark if you make no attempts to protect your trademark whatsoever.  (For example, the trademark owners for "Xerox" and "Kleenex" have to be vigilant about preventing people from using those names as synonyms for "photocopier" and "tissue paper.")  However, Microsoft really overreacted by calling out the legal heavy artillery here -- it doesn't have an obligation to pursue nearly frivolous lawsuits like this one.

Robert Jacobson
Monday, January 19, 2004

I heard Coke and Kleenex actually lost their trademark, but I could be wrong... You know my grapevine isn't what it used to be.

www.MarkTAW.com
Monday, January 19, 2004

"I heard Coke and Kleenex actually lost their trademark..."

I don't think that's happened yet.  It's a danger for Coke, especially since in some Southern states people use "Coke" as a synonym for soda pop -- e.g., "I'd like an orange coke."  OTOH, Coke is very agressive about defending its trademark -- it even sends undercover investigators into bars to make sure that when you order a "rum and Coke" you're not actually getting a rum and Pepsi.

Robert Jacobson
Monday, January 19, 2004

Ummm I can't see how a purely phonetical similarity combined with the use of someone's own name could ever be construed as a possible trademark violation.

This is more like a complete lack of common sense, there's entire skyscrapers of evidence that Microsoft defends their trademarks.

Simon Lucy
Tuesday, January 20, 2004

'Smart & Biggar'

What a great name for a lay agency.

All they need is somebody called Thanyou.

Ged Byrne
Tuesday, January 20, 2004

Or even a law agency.

Ged Byrne
Tuesday, January 20, 2004

Mike Rowe is back, and it is starting to get interesting.

:: Microsoft Updates :: January 19/2004 :: Wow. 
Wow, this is amazing. My site this morning went down because of the massive amounts of visitors coming to my site. 250000 to be exact. My host couldn't handle the bandwidth so he was forced to shut it it down. I pleaded my case on a couple message boards and Deafening-urge.net came through for me with a great offer to host my site. Many thanks to him.

I have been all around the world and back, I never expected this type of feedback. I have put up a defence fund so that I can hire a lawyer to guide me through the process of talking to Microsoft. I have already received a lot of pledges and I think each and every one of you for that.

I could never think this could happen, even in my wildest dreams.

Ged Byrne
Tuesday, January 20, 2004

I dunno Smart & Biggar could probably do very well agenting lays.  Almost as well as Slow & Faster.

Simon Lucy
Tuesday, January 20, 2004

"Since my name is Mike Rowe, I thought it would be funny to add 'soft' to the end of it,"

Seems to me he admits to deliberatly make the company name sound like Microsoft. Then he proceeds to demand 10.000$?
Is his next move going to be releasing MikeRowSoft Wenduws and MikeRowSoft Seaqwel Server?

Jowl Spolski - faagcreek Software - faagbugz
Tuesday, January 20, 2004

His demand was in counter to a proposal which amounted to $10, and thinking something was funny seems a reasonable thing to do.  Unless you're a girl in a queue at an airport that jokes they have a bomb in their bag.

It has been remarkably successful guerilla marketing.

Simon Lucy
Tuesday, January 20, 2004

Microsoft isn't just worried about trademark infringement, they have to worry about trademark dilution. Infringement is when someone tries to pass off their product or service as someone else's. "Hi, this is Mike calling from the MikeRowesoft corporation." Dilution happens when the trademark is used in inappropriate ways that could lessen the value of the trademark. Someone could sell Microsoft suppositories and it probably wouldn't be infringement, but it would be dilution since Microsoft doesn't want to be associated with putting things up .....

Anyway, I think they have a valid point on both counts.

Bill K
Tuesday, January 20, 2004

If the kid had tried to sell French fries online then there would probably be a microchips company to sue him.

With his name anything he puts after it (apart from penis and synonyms) is likely to sound like somebody else's company.

Stephen Jones
Tuesday, January 20, 2004

Microsoft couldn't sue if someone started marketing Microsoft suppositories. Since they can only sue if there is reasonable cause for confusion. By doing so they'd be admitting that windows belongs up someones arse.

Anyone remember M&S's MicroSoft knickers?

Mr Jack
Tuesday, January 20, 2004

This has changed. The Federal Trademark Dilution Act (FTDA) makes it illegal to use a "famous" mark in ANY market, not just in direct competition. So selling "McDonald's Software" is actionable.

And no, the law does not define "famous."

Philo

Philo
Tuesday, January 20, 2004

(quote) Yes, you can lose your trademark if you make no attempts to protect your trademark whatsoever.  (For example, the trademark owners for "Xerox" and "Kleenex" have to be vigilant about preventing people from using those names as synonyms for "photocopier" and "tissue paper.")

Well, in Romanian, the word for photocopier IS xerox :) if you say photocopier, some people may not understand it ;)  I'll look it up in the dictionary to see if it's official.

Just a reader
Tuesday, January 20, 2004

> I'll look it up in the dictionary to see if it's official.

The government now puts out dictionaries? Oh that's double plus bad.

www.MarkTAW.com
Tuesday, January 20, 2004

Double plus ungood, I think you mean.

Tim Sullivan
Tuesday, January 20, 2004

Good points about trademark dilution, but it doesn't necessarily carry the day for Microsoft here.  Specifically, it would have to show that "MikeRoweSoft"was either "blurring" its mark (causing it to lose its distinctiveness) or "tarnishing" it (giving it an unsavory connotation -- Microsoft suppositories would be a good example.)  The bottom line is that an owner of a famous trademark doesn't get a free pass just by claiming "dilution."

http://www.bitlaw.com/trademark/dilution.html

There was an amusing Supreme Court case on this issue last year.  Victoria's Secret sued a guy who was running a lingerie store called "Victor's Little Secret."  The defendant's name was obviously a play on "Victoria's Secret," but wasn't a direct copy.  (Like MikeRoweSoft.)  The Supreme Court ruled for the defendant because Victoria's Secret hadn't shown that the use of "Victor's Little Secret" was causing any actual harm.

Robert Jacobson
Tuesday, January 20, 2004

There has to be a case here of being a parody. If I registered Microshaft.com and posted a picture of Bill Gates with Long Horns coming out of his head, would MS come after me?

www.MarkTAW.com
Tuesday, January 20, 2004

Robert, I wasn't addressing the MikeRoweSoft issue - obviously I can't. I was addressing the posts about "outside the market" defense that used to be viable, but was changed by the FTDA.

Philo

Philo
Tuesday, January 20, 2004

Thanks for the clarification Philo, although I was responding largely to Bill K's post.

BTW, since the kid lives in Canada, this makes things even more complicating -- does Canadian law apply, and if so, does it differ substantially regarding either infringement or dilution?  It will be interesting to see how this all plays out.

Robert Jacobson
Tuesday, January 20, 2004

How's this for bitter irony.... someone's already registered a "typo" link for MikeRoweSoft.com.  My fat fingers entered:

http://www.mikerosesoft.com/

And I was directed to a GoDaddy.com placeholder site.  The name was just registered yesterday.  Now the kid has someone to sue.  <g>

Robert Jacobson
Tuesday, January 20, 2004

Personally I don't care about the legality of it.  Here's why I'm cheering for Mike Rowe

On Friday my broadband connection was disconnected.  I spent ages on the phone try to get it back up, because I needed to access my VPN at work to prepare for Monday morning.
   
I finally find out that the disconnection was a clerical error on m ISPs part.  Still isn't back up.

Whenever a company makes a mistake like this, there is nothing I can do about it.

The slightest smallest oversight on my part regarding my account, and they hit me with a big charge.  I have no choice but to pay up.

Over and over again I am reminded of my impotence against these giant companies that I am reliant upon.

So when I see an teenager in Canada standing up to the mighty Microsoft, then I have to cheer him on.

Ged Byrne
Wednesday, January 21, 2004

Glad to see you take a more discriminating stance, Ged. You know, in these days of "All indians are worthless 2-bit fly-by-night lowballers that don't even speak English", "all blacks are stupid" and "all americans are overweight warmongering imperialists", a guy like you that clearly rizes above the blantant generalizations realy warms my heart.

Anyway, the boy seems to getting the dough he was after: http://news.zdnet.co.uk/business/legal/0,39020651,39119214,00.htm

Just me (Sir to you)
Wednesday, January 21, 2004

Sir,

Are you replying to my comment in the above post? 

I'm really not seeing the link.  Could you explain it to me?

Ged Byrne
Wednesday, January 21, 2004

Ged,

the point I failed to get across was that I believe you shoud not tar every "giant company" with the same brush. While there are similarities, there are differences as well.

Just me (Sir to you)
Thursday, January 22, 2004

I think I can safely state that all giant companies are heartless monolithes for the same reason that I can say that experienced marathon runners are fit: natural selection.

To become a giant companie you have to behave a certain way to succeed, just as you have to be fit to complete a marathon. 

Being caring and compassionate is not going to improve the giant companies chances of survival.

Sure, the company can pretend to be nice.  Certainly, it is possible to have a well meaning CEO, but none of this really matters to what the company is deep inside.

This can be seen in the way it treats its workforce.  If it is in the companies best interests to downsize just before christmas, then they will do so.

To make a sweeping statement Indian developer doesn't work.  Being Indian is a result of your birthplace, effectively random.

If you can point to a genuinly caring compassionate giant company then I will accept that I am wrong and post a picture of me eating a hat somewhere on the web.

Ged Byrne
Thursday, January 22, 2004

"This can be seen in the way it treats its workforce. "

Well, HP used to treat it's workforce very well, and Microsoft reportedly still does.

Just me (Sir to you)
Thursday, January 22, 2004

Tell that to the guy who got fired for taking a photograph.

http://www.michaelhanscom.com/eclecticism/2003/10/fifteen_minutes.html

Of course he signed a contract that forbid the taking of photographs so he had it coming to him.  Thats not my point.

I make mistakes all the time, and if theres a corportation involved they punish me every time.  Nothing I can do about it.

These corporations also make mistakes, and I just have to take it every time.

My experiences are not unusual.  The majority of people put up with this day in day out.  This is why the narrative force of a story like this is so strong.

Ged Byrne
Friday, January 23, 2004

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