legal battle with Microsoft that has seen Linux reseller Lindows running a
gantlet of courts over trademark infringement seems, for the moment, to be going
in the open-source company's favor.
The naming spat has been running since 2001 and has seen Lindows lose out in
similar wranglings in the Netherlands and Sweden.
The U.S. District Court in
Seattle ruled Wednesday that the jury in the case should "consider whether the
Windows mark was generic" before Windows 1.0 entered the marketplace in 1985. It
also said that even if the "primary significance" of the term is not generic
today--that is, has been displaced by the proprietary use--the trademark is not
The upshot is that the open-source company can continue using its name for
now, but legal hurdles remain. The judge postponed the current March 1 trial
date, itself a delayed start, to an unspecified time, pending an appeal from
Microsoft has held that only present-day use of "windows" should be
considered by the court to assess the current validity of the trademark. Company
spokeswoman Stacy Drake said Microsoft would promptly pursue the appeals
opportunity. "We're very encouraged the judge has granted our request to ask the
Court of Appeals to provide guidance and clarity on this issue," she said.
Daniel Harris, Lindows' lead trial counsel, said in a statement that the win
was a major blow to Microsoft. "The court's ruling confirms that a company, no
matter how much money it spends, cannot buy a word out of the English language.
These repeated filings by Microsoft are just another attempt to deplete our
resources by dragging these legal proceedings on for as long as possible."
Microsoft, which hopes to ban the company from using its Windows-spoofing
name, has had some court rulings go in its favor. For example, the Benelux injunction forced Lindows to
stop selling or advertising its products, cancel all outstanding orders and stop
users in the Netherlands, Luxembourg and Belgium from accessing its site.
Jo Best reported from London. CNET News.com's David Becker contributed to this