Microsoft Strikes Again

[Greyhawk_DM]

Microsoft apparently is going after a 17 year old kid by the name of Mike Rowe who owns the domain name of www.mikerowesoft.com. Just because he added soft to the end of his name for his domain name.
What are your thoughts on this?

Here is a little info from his website....

I received an email from Smart & Biggar, Microsoft's Canadian lawyers, informing me that I have been committing copyright infringement against Microsoft. They told me that I must transfer my domain name over to Microsoft as soon as possible. I was baffled by this email, yet thought it was funny at the same time. Microsoft was going after a 17 year olds part time business that he put a lot of time into just because it has the same phonetic sound as their company.

EDIT: By the way, he told them because of the time and effort that he spent on building his website and small business that they offer him a cash settlement....

They offered him $10.00 USD.

Also a news story on CNN...
http://www.cnn.com/2004/TECH/internet/01/20/rowe.fight/index.html

Apparently they are backing down somewhat now...

 

[BrooklynKnight]

yanno, this guy is now gonna make thousands of bucks from the fame he's getting.

 

[Dimwhit]

In Microsoft's defense (I can't believe I'm doing it), a company has to go after any possible trademark infringment. If they don't, they can actually lose the trademark. Not that it would happen with Microsoft.

Still a funny story, though.

 

[BrooklynKnight]

i dont think a phonetic sounding name qualifies though. I think they took it a step too far.

 

[Hand of Evil]

Why did he have to put soft on the end? Sure, a lot of company's do but they have products that do not sound like duck, sorry but I have to side with the evil empire here, they have to draw the line and not let it move one inch or they open the door to others! While I hate it, there are audits on so many levels that a company has to deal with, they effect stocks, what you can put on your site, legal issues, customer relations, crap that most people don't deal with.

 

[drothgery]

Incidentally, Microsoft has since backed off.

 

[Greyhawk_DM]

i dont think a phonetic sounding name qualifies though. I think they took it a step too far.

I agree...that's what I found so disturbing about this news.
Makes me wonder how many small businesses that don't get the media attention get run out of business because of tactics like this.
Essentially the domain name is his own name "mike rowe". He just added soft to the end of it. Should he be penalized because phonetically his name together with soft sounds like microsoft?

 

[AGGEMAM]

Oh, and it's only in american that the phonetic resemplance is evident, in british the phonetic similarity is quite far off.

 

[Olgar Shiverstone]

i dont think a phonetic sounding name qualifies though. I think they took it a step too far.

As I understand it (I've had a class in IP law, but IANAL), the infringement depends on the capacity for the trademark to become confused in the public's eye, not necessarily on the physical form of the trademark -- phonetic similarities apply. Since both are in the software industry, and both sound the same, MS probably has a reasonable legal case (though they're doomed in the court of public opinion). They've probably got a great case to prove willful infringement (which carries potentially substantial damage penalties) because of the name similarity -- after all, had he not added "soft" to his name, there's no case. OTOH, to actually recover anything, MS also has to prove they were damaged in some way, which is highly unlikely given the situation, so about the best they could ultimately hope for is control of the domain name.

Put another way -- if my name were MacDonal, and I opened a restaurant named "MacDonal's Burgers", big M would have me dead to rights for trademark infringement, even though I'm using my name and it's spelled differently -- we're in the same general business and the possibility exists of confusing the two trademarks. If I were a software company, "MacDonalSoft", I'd be OK, since the liklihood of McDonalds' IP being infringed is minimal given the dissimilar industries.

IIRC there's case law to support this sort of situation -- maybe one of the lawyers here can enlighten us on the nuances.

 

[AGGEMAM]

IIRC, Big M, has really loosened it policy on that since Sir Donald McDonald McDonald (I'm not stuttering) threatened to sue them for right of using the name McDonald. He is the head of the original McDonald clan and hold the universal rights to that name.