Microsoft has asked a Seattle court to reconsider a strongly worded ruling, issued in March, which said that Windows is a generic term and as such Microsoft does not have exclusive rights to the name.
The ruling was issued in response to Microsoft's attempts to stop a company that is building a GNU/Linux-based operating system using the terms Lindows.com (its name) and LindowsOS (the name of its forthcoming operating system). LindowsOS, due to be released later this year, will run Windows applications, according to Lindows.com. "The Court finds that Lindows.com has met its burden of proof in rebutting the validity of the Windows trademark," said Judge John C. Coughenour at the time.
But in a submission filed on Good Friday, Microsoft said the court concluded that Lindows.com had presented enough evidence to show that the term Windows was generic only because it had fundamentally misunderstood the test for "genericness".
The court should not have considered whether the term "Windows" was generic in the mid-1980s for one of many features shared by software products, said Microsoft. Instead, the appropriate question should have been whether "Windows" was generic for operating system software.
As an example, Microsoft's lawyers used the analogy of going into a store to buy beer. "For example, a consumer might ask a grocer if the store has light beer -- a generic term for a class of products," they said. "However, there is no evidence that consumers would ask what 'windows' or 'windows software' the store carriers as a general reference to operating systems as a class of product."
Microsoft noted that it is not suing Lindows.com to prevent its use of the word "Windows" to refer to the windowing function used in many programs. Rather, it was suing to stop what it claims is infringement of trademark by the use of "Lindows" as the name of a competing operating system.
However, Lindows.com chief executive Michael Robertson accused Microsoft of belabouring the outcome in an effort to "drag our company through a lengthy and costly legal battle." Robertson said that Lindows.com supporters submitted thousands of references to windows spanning the last 20 years. "They helped build a strong foundation which the Judge relied on in his initial ruling. Microsoft's hundreds of attorneys and billions of dollars can't rewrite history and the fact that windows is a generic term."
Such arguments cut no ice with Microsoft. "No dictionary item, no trade press article and no other evidence cited in the Order even once uses 'windows' as a synonym for 'operating system'," said the company in its submission.
Defending the initial refusal of a trademark for Windows by the Trademarks office in 1993, Microsoft said the decision was made before it produced evidence of non-genericness. The Trademark Office later reversed its decision, and granted Microsoft a trademark in 1995. An expert linguistics analysis of media use found that the term "Windows", said Microsoft, was either used with a capital "W" to refer to Microsoft's product or with a lower case "w" to refer to discrete viewing areas on a computer screen.
"The evidence relied on by Lindows is insufficient for two reasons," said Microsoft. "First, it shows use of 'windows' as the name of a feature, not as the name of a genus of products. Such feature references may show that 'windows' is descriptive of the goods, but not generic. Second, Lindows' evidence shows repeated uses of Windows as Microsoft's trademark. Thus, it offers no support for a finding of genericness."
Microsoft also dismissed earlier windowing operating systems: "Evidence that Xerox and others developed computer systems with overlapping windows as a feature does not show that relevant consumers ever used 'windows' as the name for a genus of goods."
The Judge can deny the reconsideration motion or ask Lindows.com to file a legal brief in response. Microsoft has until 15 April to file an appeal on the Judge's initial ruling. The appeal, if filed, would be heard by the 9th Circuit Court of Appeals.