Ruling questions Windows trademark

Microsoft on Monday lost the first stage in its battle to stop a San Diego software company from branding itself as Lindows.com and its Linux-based operating system -- which will run popular Windows-based programs -- as LindowsOS.

In a strongly worded preliminary ruling handed down late on Friday in a US District Court, Judge John C. Coughenour denied Microsoft's request for a preliminary injunction to prevent Lindows.com from using the terms "LindowsOS" and "Lindows.com," stating that "Microsoft has raised serious questions about the validity of its trademark (Windows)."

The ruling, which could be overturned at trial, indicates that Windows is a generic term; Microsoft, said the judge, has not demonstrated that it is likely to win the trial.

Microsoft brought the action against Lindows.com in December last year, contending that the name infringed upon the Windows trademark and was purposely trying to confuse Lindows with Windows. The suit asks the court to order the start-up to stop using the Lindows name and also sought unspecified damages.

"We're not asking the court to stop the company from making their products," said Microsoft spokesman Jon Murchinson at the time. "What we're saying is they should not use a name that could confuse the public and infringe on our valuable trademark."

Lindows is based on the Wine project, an open-source effort to mimic the commands that Windows programs use. Lindows.com was launched earlier this year by Michael Robertson, former chief executive of digital music site MP3.com.

In a statement, Robertson said he was satisfied with the court's ruling. "Our hope is that we can move beyond the courtroom and focus on our goal of bringing choice back to the PC business. Microsoft constantly appeals for the 'right to innovate.' I hope they will allow us to roll out our innovative operating system, which will cost a third of Microsoft's products, without further impedance."

In its 30-page ruling, the court said noted that although the US Patents and Trademarks Office approved registration of the Windows trademark in 1995, only two years earlier the Office had rejected such registration. The reversal of this earlier decision was made, said the judge, "with no analysis or explanation."

Judge Coughenour went on to note that both computer-specific and general dictionaries from the early 1980s to the present contained definitions of "window(s)" indicating it was understood by the public to have the generic meaning offered by Lindows.com. "Lindows.com presents literally hundreds of computer products, software companies, and trademarks that incorporate the term 'windows' or a variant such as 'win' or 'window' in their name to support its argument that the term has taken on a second generic meaning -- compatibility of software applications with the Windows operating system," he said.

A trial date is expected to be set on Tuesday

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