Design Firm Accuses Microsoft of Trademark Infringement

Lora Bentley reports that a small company in Missouri has filed a trademark infringement action against Microsoft for its use of the word "Bing" in connection with its search engine. After a quick look at the story, my first thought was "It's Apple and Psystar all over again." Well, it seems that way -- at least in terms of the David-and-Goliath-like mismatch of size and strength.


Bing Information Design, founded in St. Louis in 2000, specializes in creating and using graphics, illustrations and interactive to "make complex ideas easy to understand," according to its Web site. Its clients include GlaxoSmithKline, The New York Times Company, Young & Rubicam, Chevron and Sprint. indicates the company originally applied to register "Bing!" as a trademark May 26, 2009, but the U.S. Patent and Trademark Office denied the application on Aug. 25 and gave the company six months to submit "supporting information." The law suit, filed in St. Louis, alleges trademark infringement and unfair competition. The company wants Microsoft to pay for corrective advertising to "eliminate confusion between the brands," the story says.


Microsoft launched the Bing search engine this year, and applied to register the trademark "Bing" on March 2, 2009.


I don't practice intellectual property law, and I don't know all the facts involved here, so I won't try to predict the outcome. However, assuming Bing Information Design can establish a right to the mark, an infringement case typically hinges on the likelihood that another company's use of that mark will confuse consumers as to the source of the goods or services offered.


There are several factors courts consider in determining whether a likelihood of confusion exists, according to Harvard Law School's trademark law overview, including the strength of the mark, the proximity of the goods, and evidence of actual confusion. But it seems proving a likelihood of confusion here might be difficult. Microsoft's Bing is a search engine. Bing Information Design is a design company. They don't offer the same services, even if their marks -- "Bing!" vs. "Bing" -- are close.


At any rate, let's hope it doesn't actually turn into another Psystar case. That's roughly 18 months neither company will ever get back.

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