MS Strangles Puppy To Save MacOffice

A Scottish Lemon Dog has seen off Microsoft's Rocky the Dog, in a trade mark dispute. Inner Workings, a Glasgow-based interactive games developer, found that Rocky, an assistant in Office 2000, bore a strange similarity to its Lemon Dog character. Coincidently, IW had shown its trademarked dog to Microsoft at a September 1996 trade show in Frankfurt.

Lemon Dog is yellow with a blue bow tie. Rocky is also yellow, and has what appears to be a blue tag on a red collar. IW intends to use its dog as a free-roaming assistant for Windows, and thinks it could be confused with the younger Rocky, an office assistant for Microsoft's Office 2000 suite.

Lesley Keen, IW's MD and a rising star in the Scottish software industry, was invited to a closed meeting with Tony Blair in Glasgow last week. She had written to Microsoft twice to ask them to stop using Rocky, to no avail. "We are not Microsoft bashing. Inner Workings has a close working relationship with Microsoft as a significant DirectX developer, but might is not right."

IW then had a summons issued. Microsoft turned up with seven lawyers, and three executives: IW had just two lawyers. IW's case was that Rocky was likely to be confused since both characters were planned for use in Windows-based systems. Microsoft claimed that the characters are not similar, and made an extraordinary claim: Rocky had been "in continued use" prior to the granting of the Lemon Dog trademark, but was then known as "Rover", the predecessor of Rocky, in Microsoft Bob. [Bob is considered to be one of the few innovative Microsoft products, also featuring assistants, but it flopped in 1995 having sold only around 30,000 copies worldwide.]

In its defence, Microsoft said that Rocky appeared in Office 98 for the Mac (with "over 25,000 licences" sold in the UK) and that if Rocky had to be removed, Mac Office would need to be withdrawn from the market for some three months. In addition, "more than 500,000 copies of Office 2000 beta" had been released, and "its removal from Office 2000 would delay release of that product by at least one week", with each week resulting in "revenue losses of tens of millions of dollars".

The veiled threat was that if Microsoft won at a full hearing it would have incurred substantial losses. Normally this would have meant that IW would have to show substantial financial resources, in case it lost at a full hearing. Labyrinthine Scottish law came to the rescue, where a cross-undertaking is a factor, not a requirement. John MacKenzie of IW's lawyers Bird Semple, said that "in Scotland you were allowed to be poor and right".

The second morning, a Microsoft lawyer interrupted the proceedings and offered an undertaking that required Microsoft to remove Rocky from packaging, advertising, marketing and promotional material, point-of-sale material, and from Microsoft's web site by yesterday. Microsoft said it was "very sensitive" to IW's concerns.

The precise settlement terms are not being disclosed, but that is probably code for Microsoft having paid IW's expenses, and for silence on the matter. It appears probable that Microsoft avoided the risk of being ordered to withdraw Office 98 for the Mac by surrendering. It is also most likely that the lawyers in Edinburgh talked to Microsoft general counsel Bill Neukom overnight and were instructed not to lose the case, because it could damage the Washington trial. ®

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