Guest Blog: A Hopeful King Bing, But It’s Not Google

By Mark Skoultchi

June 4, 2009

**This post was graciously contributed by Stephen Baird, Winthrop & Weinstine law firm.**

Microsoft is flashing its latest version of bling with its launch of the much anticipated “decision engine” it has dubbed Bing. I agree the new brand name has a nice ring (according to Microsoft, the “sound of found”), with great brevity, rhythm and cadence, but sorry, I’m sticking with the generic name “search engine,” with good precedent for doing so, as Microsoft’s pending trademark applications reference the terms “search engine” and “searching” several times, with no mention of any “decision” thing.

As far as I can tell, Microsoft has not created a new product category here, one that might justify re-naming the underlying generic term for an entirely new category, as Rollerblade attempted to do ten years after-the-fact with “in-line skates”. Here we simply have a new brand name for another “search engine,” Microsoft’s search engine.

Of course, there has been much discussion on how Microsoft came to the “decision” to re-brand its search engine, yet again, with some commentators hoping for more bada bing in the new name. It is too early to tell what the newly branded search engine will bring. Some may wonder if this is just another Microsoft re-branding fling. Or is Microsoft hoping its new name will cause those who use the current king of search engines not to cling? Perhaps Microsoft is hoping that internet users will leave the king to bing(e) on Microsoft’s new brand of “decision engine.”

Word on the street is that the Bing name was actually second string, proposed to play off the bing cherry variety, but no sign of any fruit on the new site, just some beautiful artwork reminiscent of a Ricola® television spot.

In terms of other existing meanings, I’m wondering whether anyone bothered to check Dictionary.com listings for Microsoft’s new brand, since “bing” apparently means a “a heap or pile” (“British dialect”) (no indication of what the subject of the heap or pile might be, but you can use your imagination, and I’m sure British pundits will, if the product doesn’t live up to expectations across the pond). It is also listed as an “obsolete” term for the verb “to go,” so, perhaps Microsoft is hoping to bring that meaning out of obsolescence. Hopefully for Microsoft this re-branding exercise won’t sing a dead note in the way the Nova brand did decades ago for GM in Spanish speaking countries (“Nova” = “No Go”).

Now, from the left brain side, it is interesting that Microsoft went to the other side of the world to file its first Bing trademark application — in New Zealand — back in September 2008. Perhaps the trademark filings down-under aren’t monitored as readily by competitors and critics as they are here, giving Microsoft an extra six months to more discreetly plan and prepare for its public announcement and discussion. Bingo! This strategy, assuming it was one, permitted Microsoft to wait until March 2009 to make its trademark filing public here in the United States while still keeping the earlier September 22, 2008 priority date that it obtained by first filing abroad.

Nevertheless, Microsoft has encountered some issues at the U.S. Trademark Office, with one of its Bing applications initially being refused registration based on another company’s Bing Mobile Inc.® registration for “mobile phone software for a social networking service,” and with another application getting through without any third party marks being cited at all. It appears Microsoft anticipated the Bing Mobile issue, however, as papers to expressly abandon the Bing Mobile application were filed in November 2008, well before the May 2009 refusal. (Wikipedia even has an entry now for Bing Mobile that pings to Microsoft). Double Bingo! Having said that, for some reason the abandonment papers were ignored by the Trademark Office because the registration for Bing Mobile issued anyway in January 2009, and has now been cited against Microsoft. Presumably Microsoft easily can fix that clerical mistake, but how much cha-ching do you suppose was paid for the trademark abandonment and clearing the path for Microsoft’s (hopeful) King Bing?

It may be that Microsoft will have to bring more cha-ching to clear other possible obstacles or to at least own broader rights than it does now, considering the existing crowded trademark landscape. For example, what about Mathew S. Brown’s prior federal service mark registration for Badda Bing, or Dell Computer’s prior service mark application for Zing, or Accoona Corp’s prior service mark application for Twing, both specifically covering “search engines for obtaining data on a global computer network”? Basically, once commercial use is made of Zing and/or Twing, as search engines, and these applications mature into registrations, the priority dates for both will predate anything for Bing. No worries from Yahoo!, apparently, as it abandoned its prior trademark application (and presumably its use) for Bingo in connection with “search engines” back in 2005. Stay tuned, it will be interesting to see how this all plays out for Microsoft.

Anyway, I’m hearing the bell ding, so please ping your thoughts about Bing assuming they don’t sting or make you sound like a ding-a-ling.

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