SEATTLE JUDGE RULES AGAINST MICROSOFT AGAIN
Microsoft lost its appeal to block San Diego software company from calling itself Lindows.com and its Linux-based programs LindowsOS. In 7-page ruling, U.S. Dist. Court, Seattle, Judge John Coughenour said his March 15 ruling denying request by Microsoft to shut down Lindows was appropriate.
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Microsoft’s original complaint charged Lindows with trademark infringement and unfair competition under Lanham Act. Software giant argued use of names Lindows.com and LindowsOS traded off goodwill of Windows trademark and would cause confusion among prospective buyers of Windows products and dilute ability of Microsoft’s trademark to distinguish its products from competing products. But Coughenour said in March that “at most, Microsoft has raised serious questions about the validity of its trademark, but has fallen short” of showing Lindows.com should be prevented from using names as part of its business. He also said “there is indirect evidence that Microsoft considered Windows to be generic at the time it began using the trademark” -- so much so that when company first released Windows in 1985 it referred to operating system as “Microsoft Windows 1.0.”
Spokesman for software giant told us in March Microsoft was “disappointed with the ruling but we intend to pursue our claim in order to protect the Windows trademark.” In asking Coughenour to reconsider his decision, Microsoft went on to claim judge had engaged in “fundamental misapprehension” in applying test for genericness and “reached an incorrect result.”
But in denying Microsoft’s motion for reconsideration, Coughenour said: “The Court did not err in either its legal or factual analysis when it denied Microsoft’s motion for a preliminary injunction… Applying the proper 9th Circuit test for genericness and the 7th Circuit’s gloss regarding adjectives and other descriptive words that classify the noun to which they are attached in composite terms, the evidence shows that the consuming public used the terms ‘windows,’ ‘window’ and ‘windowing’ to refer to a type of graphical user interface or other software program, including operating systems, in which overlapping windows are the predominant visual feature.”
Lindows.com CEO Michael Robertson said: “Microsoft’s attempt to intimidate Lindows.com through legal attacks is part of their ongoing war against any potential competitor. This time their strategy has not only failed, but has completely backfired with their [Windows] trademark now being put at risk and on trial. Our goal is to bring choice back to computers in spite of Microsoft’s bullying tactics.” Microsoft spokesman said: “We respectfully disagree with the ruling and will continue to prepare for trial. The Windows mark is one of the most recognizable brands in the world and we will defend the years of hard work that went into building it into a trusted name among consumers.”