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View Full Version : Kleinweder's Home Screens Site Shutdown by Microsoft Lawyers


Mike Temporale
05-10-2006, 02:00 PM
<div class='os_post_top_link'><a href='http://smartphone.kleinweder.ch/downloads/index.php' target='_blank'>http://smartphone.kleinweder.ch/downloads/index.php</a><br /><br /></div><i>"I'm very sorry, but "Micro S." marketing staff informed me today (Tuesday Mai 11, 2006) that I'm not allowed to make homescreens or show pictures which use any of their trade names, photos or logo. Unfortunately every screenshot shows their logo at the lower left corner which makes it impossible for me to continue my site."</i><br /><br />This message is greeting anyone that heads on over to Kleinweder's site to download some of the best home screens available on the internet. Surely, this is not just about the Start button flag, or is it? Because that flag shows on every screen capture and preventing it would cause havoc on sites like Smartphone.net or Handango. Whatever the cause, I hope this is just a simple misunderstanding on Microsoft's part because if it isn't, the implications are huge. 8O :cry:<br /><br /><b>Update:</b> Kleinweder's site is now back up. It looks like it was all a big misunderstanding. For all the details check out the post I made on page 4 - <a href="http://www.thoughtsmedia.com/spt/forums/viewtopic.php?p=71143#71143">found here</a> 8)

edgar
05-10-2006, 02:56 PM
OK, that just sounds stupid. I understand the reasons to protect your logo/brand but a thing like this that enhances your product and makes people feel better about your product?

Wasn't he using some screens that were knockoffs of Bliss? (by the way, so does some PocketPlus' themes on SPB's page, not to mention tons of others that use storm clouds or flowers to modify it) I think he also had a couple with the MS window pane in the background.

Even then, these are themes that are not attacking MS with things like "not" signs over the logo, or calling them "Microsloth" or anything. Just nicely done artistic themes. Maybe MS is getting ready to release a themepak for money that used some of the same modifications?

BAH!

SPPassion
05-10-2006, 03:30 PM
This is plain CRAZY!!! Just when MS Mobile OS is getting some attention, they have to do something stupid like this to turn off potential future consumers/developers. This is just the beginning, does this mean they may start going after other great theme sites such as Nectin or Juni's??? I hope this is just some sort of misunderstanding....

seaflipper
05-10-2006, 04:16 PM
It's probably the combination of the near naked (if not naked) ladies and the MSFT branding that is the problem with MSFT.

Not to mention that his home screens are better than most of the carrier's custom home screens!

I always thought MSFT would buy him out anyway and get him to work for them, I thought his stuff was some of the best/cleanest/easy to use out there.

guapoharry
05-10-2006, 07:22 PM
This story is nutty. Apparently, to the MS legal team Kleinweder was harming Microsoft by infringing on trademarks or other property, rather than enhancing their product through creating cool themes that users like.

It's the MS way, or it's a lawsuit headed your way.

Rocco Augusto
05-10-2006, 07:24 PM
this has to be the most retarded move microsoft has ever made. thats right, i said it, retarded.

what ar you gonna do next? make smartphones illegal to own because they have the windows logo on them? hmmmmmmmm? or tell people they cant use anything besides the crappy blue homescreen that comes with all phones? huh? well,, i think theyre just being stupid.

EDIT: alright i had a second to cool off. how much do you want to bet this isnt really the work of microsoft and most likely the work of some over zealous lawyer. personally i dont think the windows mobile division would be anything less than flattered with the work that was presented on their site. i mean microsoft goes as far as having articles online to show people how to make their own homescreens. this has retarded lawyer written all over it.

extravagant
05-10-2006, 07:59 PM
wow I can't believe Microsoft did that... who does that? It MUST be a misunderstanding. I mean, his contributions were so significant, thats the only reason a lot of people including myself bought an MS smartphone, because of the mass customization, and now microsoft is hindering this..

really incredible, just shows how mighty Microsoft is and how they don't care, BOYCOT anyone? The smartphone market exists because of us, not the average person. ASK anyone down the street what a Microsoft smartphone is, they wouldn't know.

Reallllly sad, but I have to say, may be he should fight back, and not be intimidated by Microsoft I'm not a lawyer, but he must have some sort of defense that would allow him to continue, afterall, hes not selling them...

Microsoft = reallllyyyyy bad company and recently in that report it even shows consumers don't like/trust microsoft.... GOOGLE!!!!! I can't wait till that Google OS is released ;)

xultar
05-10-2006, 10:56 PM
Well if it is true with all the 1/2 and fully neekid babes themes I can see why.

Though it helps the product with 1/2 the population. Personally I get really sick of having to weed through neekid babe themes. I get sick of seeing them too. From my perspective it alienates atleast 1/2 of their possible customer base.

I'm sure sites that don't host neekid themes won't have an issue though this does set a precedence.

What is it with guys and neekid women themes? Why not just be adults about it and not go the neekid lady route?

Kris Kumar
05-11-2006, 01:39 AM
What is it with guys and neekid women themes?

I want to meet the guys who are brave enough to have such wallpapers. I seriously do. Would like to know what makes guys download those themes. To me it is just not practical. And I am sure that must have made it easy for the Micro S think tank to come to a decision.

It is a shame that a creative and talented designer has been asked to remove the wall papers that infringe the trademarks, but surprised that Kleinweder has not vowed to bounce back with more cool themes. :-)

Mike Temporale
05-11-2006, 03:01 AM
but surprised that Kleinweder has not vowed to bounce back with more cool themes. :-)

He can't. From the wording on his site, he can't even display an image that contains Microsoft's logo. Every screen capture has their start flag on the lower left corner. So, regardless of the theme he creates, he can't post a picture of it without cropping the image and by doing that, you can't get a feel for the colours in the theme. :?

f540xs
05-11-2006, 03:06 AM
I'm appauled. His homescreen's were beautiful (beside the naked chicks ones). They made Microsoft look good. If they could only come up with homescreens as good as his...

Rocco Augusto
05-11-2006, 03:08 AM
well if it is about the naked woman themes i could totally understand. personally i feel they're tacky and immature.

oh well, at least we'll still have modaco and airfagev for themes :)

Mike Temporale
05-11-2006, 03:14 AM
Well if it is true with all the 1/2 and fully neekid babes themes I can see why.

He had some themes with women, but I wouldn't say that there was all that many of them. I don't think there was any nudity at all. Regardless, those themes are not my style and could you imagine if a customer saw that on my phone. 8O

I've been using his themes for a while now. Especially his latest with "Mouse-Over" effects. Those were real eye-catchers. :)

Kris Kumar
05-11-2006, 03:42 AM
He can't. From the wording on his site, he can't even display an image that contains Microsoft's logo.

That can't be completely true. That can be fixed by chopping the lower part off. So does this mean that Handango and Smartphone.net will be asked to remove screen shots of applications with the Windows Logo. What about our site? I am sure for the Windows logo next to the Start button, he could have included a footer at the bottom of the site that said "Window logo, xyz, abc, blah blah are trademarks owned by Microsoft." I wonder what percentage (not counting the Start button ones) of home screens had the Windows logo or Microsoft owned images.

The only thing that bugs me is that he wasn't making money out of selling the home screens that allegedly infringe the copyrights/trademarks (okay he did accept donations, but not $$$ per screen), so why go after him. :?

encece
05-11-2006, 05:19 AM
I'm going to agree that MS probably didnt want their logo slapped next to a sexy girl. I will admit that I have downloaded some of his screens with girls on them....but that was to rip it apart and add my own graphic...because the rest of the layout was nice and easy to modify.

I also cant imagine who walks around with these photos on their phone....not that they are BAD....just that it is a tiny bit juvenile and I'm assuming the SP user base is older than that.

But in the end...his graphic layouts are top in their class and MS could have said to just remove the logos ON-SCREEN....not the Start menu logo.

DOPES!

encece
05-11-2006, 05:22 AM
JUNI has slowed down as well.

edgar
05-11-2006, 07:41 AM
Just digitize out the logo on the website - much like movies or TV does with background brands showing up

xultar
05-11-2006, 12:17 PM
I love Juni's stuff and always contributed $$$ when I used one. I love his stuff. Simply LOVE! I hope he does more ssans the logo. I don't need that anyway. Just to piss Microsoft off he should use the Apple Logo. I'd use those for sure.

kiwi
05-11-2006, 08:11 PM
I am so starting to hate MicroSoft..

I'm actually thinking of going to a Mac Mini for my desktop/media/websurfing machine now that boot camp is out..

b

seal6
05-11-2006, 09:12 PM
So with this site gone due to "legality" reasons....
Are there alternative sites that have themes for our devices?
:?

Jason Dunn
05-11-2006, 11:31 PM
Hrm. Definitely not cool - let me look into this. :?

jctune
05-11-2006, 11:40 PM
Kleinweder's Home Screens Site Shutdown by Microsoft Lawyers

Hm, I don't know if this is exactly true (unless you have some info that isn't posted on his site).

The only thing he indicates is that someone in Marketing told him to stop doing it, not from their "lawyers". Since it didn't come from Microsoft's lawyers, I would assume that its just some bureaucrat with a bug up his a**. I'm not an attorney, but I'm pretty sure that the use of a logo on a screenshot from a device (as opposed to actually putting the logo on a page) would definitely qualify under "fair use". Also, apparently there's some question about whether a screenshot is copyrighted.

I quote from the following site http://www.jisclegal.ac.uk/publications/copyrightalexmorrisson.htm

In the United Kingdom and the U.S.A. in particular there is confusion over the fair dealing/fair use status of screenshots, however, this area of fuzziness is recognized and there is often room to negotiate over the use of screenshots.

Also (from http://www.copyright.gov/fls/fl102.html ):
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.


So he's not selling these (and the use is clearly illustrative), it's a logo, the logo is not really a significant portion of the screenshot, and the use of the logo in this context could actually increase sales of Windows Mobile products. I'd love to see them try to sue him in this case. Let alone demonstrate monetary damages.

Of course, one individual is screwed if you pit him against the Microsoft juggernaut, so it could always be advisable to just give in.

*Edited to add*
I was starting to think that this may be a copyright violation based on the concept of a "derivative work". Based on this from the EFF, I don't think so, as the screenshots aren't "based" on the logo.
To be an infringement, the derivative work must be "based upon the copyrighted work," which refers to "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

Jason Dunn
05-11-2006, 11:44 PM
How can I get in touch with him? His site won't load - can someone send me a private message with his contact info? I need specifics.

jctune
05-12-2006, 12:11 AM
How can I get in touch with him? His site won't load - can someone send me a private message with his contact info? I need specifics.

These e-mail addresses are on my cached version of his contact page.

[email protected]
[email protected]
[email protected]

Jason Dunn
05-12-2006, 01:11 AM
I'm talking to someone at Microsoft about this right now, and he sent me this example:

http://www.smartphonethoughts.com/images/themes-logo.jpg

Honestly, I can see the problem here - he's using the Microsoft logo/brand inside his theme. I can understand WHY he's doing it - he's creating free themes because he enjoys the platform and it's natural to want to promote the brand as part of it - but the sad truth is that the way US law works is that if someone uses your logo/trademark, and it happens often enough, the company in quesiton loses their trademark.

I think it's stupid and frustrating that US law works this way, but Microsoft didn't make the law. :?

jctune
05-12-2006, 01:32 AM
but the sad truth is that the way US law works is that if someone uses your logo/trademark, and it happens often enough, the company in quesiton loses their trademark.

You're right in one respect - I wrongly assumed that the screenshot showed the logo as it appears on the screen anyway. I haven't owned a smartphone in a while, I forgot that there's not really a logo'd start menu. That puts a slightly different spin on the issue, however you could still argue fair use - as the usage is illustrative in nature and looking through the 4 criteria that courts are supposed to use to evaluate these issues in no way could Microsoft argue that this damages their brand.

On the losing the trademark, you can freely license the use of your trademark to others. You run into problems in two cases, abandonment and genericide.

Abandonment means that I don't actively use my trademark nor do I seek to enforce any infringements of that trademark. Since Microsoft actively uses their trademark, they are not at risk of losing it, even if they didn't seek to enforce it.

I believe you are thinking of genericide, where the trademark becomes a representation of a product/service as a whole, as opposed to the trademark owners particular brand. Others can use your trademark as much as they want as long as they are referring to you, not the generic version of your product (i.e. Xerox instead of copiers, Kleenex instead of tissues, Aspirin - which Bayer did lose - instead of pain killer). Genericide wouldn't apply here, as there's no chance that people are going to start calling homescreens "microsoft's" :)

Again I'm not a copyright attorney - so this is just my opinion from reading through some definitions and case law on the web.

Hopefully Microsoft will see the light - unfortunately the law is intentionally gray in this area - so if Microsoft decides to pursue this he can either comply or fight them in court.

Kris Kumar
05-12-2006, 01:54 AM
jctune, thanks for your insights and bringing out some awesome points.

I can understand how the system works, and why Microsoft would be concerned about losing their grip on the logo.

It also clarifies that the problem was not the logo next to the Start in the screen shots, but logo embedded in the themes themselves. Looks like Klienweder took the requirement a bit overboard.

Rocco Augusto
05-12-2006, 02:39 AM
if thats the case, where he just needs to remove the logos he added to the wall paper, then he can easily remove them and re-upload the themes to the site. no harm done. i personally keep the psd/png files for any graphic work i do and all graphic designers i know do the same so its just a matter of opening up the file and deleting that layer/logo and saving. simple :)

in the meantime if anyone else needs themes you can find some at the following sites:

http://www.modaco.com
http://www.airfagev.com

theres a ton of freeware at airfagev as well as far as apps and games go.

edgar
05-12-2006, 02:53 AM
Well it looks like he is using MS copywrited MSN messenger dude in that example as well. And then you have others that use screen such as Bliss, which is copywrited, etc. I'm not sure where they are going with this.

Where do they start/stop this, with all the themes out there that are spin offs of these iconic symbols of MS?

Pretty difficult to say that these hurt their brand. I just think its un-needed heavy handedness - they must be bored with the EU and Mass. State stuff on hold.

Also, personally, if it was just some marketing wonk that told me to stop I'd tell him to pound salt. Until I get a cease and desist I think I would stay online with my material.

Mike Temporale
05-12-2006, 02:58 AM
It also clarifies that the problem was not the logo next to the Start in the screen shots, but logo embedded in the themes themselves. Looks like Klienweder took the requirement a bit overboard.

The talk I've been having with some inside MS seems to indicate that the Start Flag is not an issue. So the concern about screen captures is gone. As Jason posted, he's placed the logo inside his themes. I've never noticed before - I guess because it's so faint.

Kris Kumar
05-12-2006, 03:21 AM
Even Google is concerned about genericide. (http://ipinstitute.blogspot.com/2005/11/google-concerned-about-genericide.html)

Wikipedia on Genericide. (http://en.wikipedia.org/wiki/Genericized_trademark)

jctune
05-12-2006, 03:57 AM
Even Google is concerned about genericide. (http://ipinstitute.blogspot.com/2005/11/google-concerned-about-genericide.html)

Wikipedia on Genericide. (http://en.wikipedia.org/wiki/Genericized_trademark)

Google definitely should be concerned. How many times do you hear someone say they are going to "google" something instead of saying "search on the web".

extravagant
05-12-2006, 07:28 AM
ONLINE PETITION FOR www.kleinweder.ch ;) http://www.modaco.com/index.php?showtopic=240657

encece
05-12-2006, 12:38 PM
The site is back up with the homescreens in question removed with a promise to recreate them without the logos.

Also note that the start button logo was not in question...just the one embedded in his screens.

Mike Temporale
05-12-2006, 03:09 PM
The site is back up with the homescreens in question removed with a promise to recreate them without the logos.

Good to hear. 8)

Also note that the start button logo was not in question...just the one embedded in his screens.

As noted on the previous page. ;)

Mike Temporale
05-12-2006, 03:19 PM
So here's the deal.

Someone here mentioned about allowing Klienweder to license the Windows Mobile logo and this is the exact problem. Microsoft does license the logo to Mobile Operators and Device Manufacturers that have passed the minimum requirements for a WinMo device. It is also licensed to certian applications via the Mobile2Market program - again these programs have acheived a certian standards level.

So here's where things get awkward. There is no certification or standards level for themes. Anyone is welcome to create as good or bad a theme as they like. All Microsoft was trying (albiet poorly) to say, was that he has to stop using the logo inside his themes because it's not licensed and by using the logo, he is saying that his work has been approved by Microsoft. And that's just not the case.

So it's not the Microsoft is out to kill the little guy or destroy the community. Thankfully, this was all the result of poor communication and everything should return to normal.

Now, I urge everyone to head over to Klienweder site and make a donation. It's obvious that his work is important to the community and we've all enjoyed it. 8)

xultar
05-12-2006, 07:06 PM
So here's the deal.

Someone here mentioned about allowing Klienweder to license the Windows Mobile logo and this is the exact problem. Microsoft does license the logo to Mobile Operators and Device Manufacturers that have passed the minimum requirements for a WinMo device. It is also licensed to certian applications via the Mobile2Market program - again these programs have acheived a certian standards level.

So here's where things get awkward. There is no certification or standards level for themes. Anyone is welcome to create as good or bad a theme as they like. All Microsoft was trying (albiet poorly) to say, was that he has to stop using the logo inside his themes because it's not licensed and by using the logo, he is saying that his work has been approved by Microsoft. And that's just not the case.

So it's not the Microsoft is out to kill the little guy or destroy the community. Thankfully, this was all the result of poor communication and everything should return to normal.

Now, I urge everyone to head over to Klienweder site and make a donation. It's obvious that his work is important to the community and we've all enjoyed it. 8)

And Juni! Juni is one of our own.

Mike Temporale
05-13-2006, 01:51 AM
And Juni! Juni is one of our own.

Juni hasn't used the Windows Mobile logo inside his themes. So this won't effect him.

maxnix
05-16-2006, 04:10 AM
When the company is run by vindictive power and control freak attorneys, the end is nigh.

Innovation my hind end!

Of course BillG father was an attorney, so he is probably predisposed towards them. Good for legal protection, bad for business.