Posted on 03/16/2002 7:40:26 AM PST by dalereed
Judge rules Lindows can keep its name for now
By Kim Peterson
STAFF WRITER
March 16, 2002
Lindows.com can keep its name for now, but the San Diego company isn't in the clear yet.
A federal judge in Seattle has denied a request by software giant Microsoft to stop Lindows from using its name. The issue could move to a trial later this year, however.
Microsoft sued Lindows over its name in December. Lindows is capitalizing on the reputation of the Windows brand, the suit said, and its name is confusingly similar to that of the Windows operating system.
Lindows, a company founded by former MP3.com chief executive Michael Robertson, is developing a new operating system based in the Linux computing platform. If the company succeeds, its operating system could be a competitor to Windows.
Microsoft may have received more than it bargained for. Not only did U.S. District Judge John C. Coughenour deny the company's request, he also said Microsoft has raised "serious questions" about the validity of its own trademark.
Coughenour did not go so far as to invalidate the Windows trademark.
Lindows decided to "play with fire" by choosing a name that was only one letter off from Windows, Coughenour said. But Microsoft made an equally risky decision to name its product after a term that has been commonly used in the computer industry for years, he wrote.
In addition, he wrote, Microsoft has not stopped literally hundreds of other trademarks and products from using all or a portion of "windows" in their names.
"It's a huge victory," said John Benassi, a San Diego lawyer who represented Lindows in the case. "It's the big bully trying to exert influence on the helpless undergrads and the helpless undergrads have now won."
Microsoft had asked Coughenour to stop Lindows from using its name until the issue could be argued in a full trial. Coughenour denied that request yesterday, but a trial could still occur.
Microsoft could decide to appeal yesterday's ruling, move ahead to a trial or drop the suit altogether.
Microsoft spokesman Jon Murchinson said yesterday that the company was disappointed with the ruling and will continue to pursue its claim in order to protect the Windows trademark. He could not say, however, whether the company planned to appeal or move to trial.
"Windows 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," he said.
If Microsoft pursues the case, the company could risk putting the Windows trademark on trial as well, Benassi said. A judge might look at whether Windows is a protectable trademark at all.
But if Microsoft wins, Lindows would likely have to drop its name, and Microsoft would have shown the computing world that "Windows" is not a word to be trifled with.
The similarities between Lindows and Windows are too great, Microsoft attorney Karl Quackenbush argued in front of Coughenour at a Feb. 27 hearing.
"Lindows sounds like Windows, Lindows looks like Windows and Lindows is spelled like Windows," Quackenbush said.
But Lindows attorney Daniel Harris argued in court that the company's name was chosen to let consumers know the product is compatible with Microsoft applications.
A sophisticated computer user would not think that Lindows is somehow affiliated with Microsoft, he said.
The case was the first time Microsoft has sued a company for infringing upon its trademark.
Legal experts have said the key to winning the case is Microsoft's ability to convince Coughenour that consumers will actually be confused over the two names. The burden is on Microsoft to prove that there is a likelihood of confusion.
Kim Peterson: (619) 293-2022; kim.peterson@uniontrib.com
Copyright 2002 Union-Tribune Publishing Co.
Aparently they have been "dozing" and being smug about no one being able to chalange their position and just woke up to the fact that a newcomer on the block might just come up with a product that not only could chalange their position but be a superior product.
Funny. That's not all that different from the line Apple used against Microsoft in the late 80s. I guess MS realizes it's a viable argument now since they dominate the market.
Only to those that have been ejukated in the guberment skools in the last 30 years.
This is a case of Microsoft wanting to have it both ways. Back in '90-91 they challenged another company using "Windows Software" in their name, claiming that "Windows" was a specific term, and could be copyrighted. Microsoft won.
In 1996, a small company named Synet (of which I was a part, and the developer for this specific product) came out with a browser and package called Internet Explorer.
Microsoft started using the name, and we sued. Microsoft claimed IN COURT PAPERS that terms like "Explorer" where generic terms JUST LIKE IT'S WINDOWS OS NAME. So here we had Microsoft arguing & comparing Windows to Explorer as "generic terms" that could be "used by anyone." While Microsoft didn't lose the case, they had to pay us several million dollars for the right to use the name, and the issue was settled out of court. In the process of a 2 year legal fight, our small company went belly-up. The money we received was used to pay creditors.
Now once again, Microsoft is claiming Windows is a specific term to their Operating System, and that "Lindows" is too close to their name.
I would hope that someone close to the Lindows.com people would point them to this post, and have them thoroughly review Synet Inc. v. Microsoft from 1996-1997. It was filed in Federal court in Chicago, IL. I do not remember the case#, I've tried very hard to forget that part of my life. But in that case are several circular arguments used by Microsoft that can and SHOULD be used against Microsoft, as they're winning issues. That's how we forced Microsoft to settle out of court.
Hello Lindows.Com .... lookah hy'ah!!
We will now use the name 'Mindows' !!!!"
LOL LOL LOL! Huge laughter and free publicity.
It's "guvament".
Gosh....
Prolly u be a nutter roads skaller?
They are located in San Diego County and were started by the guy that started and sold MP3 and is a multi millionaire.
The guy is no fool.
And a hair lip dog that runs around town yelling mark, mark, mark.
How ya been, Dale? Up for another cruise this fall?
Hahahahah! I'm telling Miss Slippy on you for that.
My wife keeps asking me and all I give her is a dumb I don't know.
We're ready!
With all due respect, you missed the point of my post. Microsoft has argued both way in previous litigation, citing Windows as a "generic" term in one case, then protecting it as a specific term in another.
That was the entire point. Use Microsoft's own "generic term" argument against 'em, and watch 'em sqeal like a bunch of stuck pigs.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.