Microsoft Appeal Denied, Trial with Lindows Set

Was the term “windows” used in the computing world before Microsoft’s Windows operating system first hit the scene in 1985? A U.S. Court of Appeals ruled this week that Microsoft will not be able to make that case to the judge in the Microsoft-Lindows trademark conflict before trial, which now will be held later this year.

The two companies have been locked in a legal dispute spanning several jurisdictions around the world since Microsoft sued over trademark infringement in 2001 and asked for a company and product name change. Lindows has since changed the name of its Linux-based operating system to Linspire, but also has continued to put up a legal and publicity fight against Microsoft, claiming the software giant cannot claim ownership of words.

“We’re looking forward to getting this trial back on the fast track and presenting our piles of evidence — videos, magazines, internal Microsoft documents — which clearly shows the generic use of ‘windows’ before Microsoft commandeered the word,” said Lindows CEO Michael Robertson. “This outright denial of Microsoft’s appeal confirms that the trial will focus on how consumers and the software industry used the term ‘windows’ in the 1980s, before Microsoft dominated the landscape.”

No Windows Pre-Installment

As is typical with such court cases, the different sides attempted to spin the ruling from the U.S. Court of Appeals for the Ninth Circuit as either a minimal, procedural event or a significant win.

However, the failure of the appeal means that the word “windows” will be considered by the jury without judge’s instructions for the jury to consider that its current meaning will stand. In other words, the jury will be looking at the term “windows” without being influenced by Microsoft’s current use of the term.

The ruling sets the stage for a trial that likely will begin during the second half of this year in the Seattle courtroom of Judge John Coughenour. Lindows said it expects the trial to last about two weeks, with each side taking a week to present its case. Among witnesses already expected to testify are Robertson, Microsoft head Bill Gates and chief executive Steve Ballmer.

Name Change Needed

Microsoft spokesperson Stacy Drake told TechNewsWorld that the software giant has maintained since the beginning of the case that Lindows needs to change its name because it is “clearly intended to invoke our product name.”

“This is an important trademark principle and one that we’ll defend vigorously in court,” Drake said. “This clearly moves up the timeline, but we are confident in our case, and we are prepared to go to trial.

“All we’ve asked of them is that they change their name,” Drake added.

Rebranding and Rebuking

The trademark infringement trial had been set to begin last March but was postponed following Microsoft’s “eve of trial” appeal, according to Lindows.

The San Diego-based company’s lead trial counsel, Daniel Harris, who accused Microsoft of delaying the case, told TechNewsWorld that the latest ruling is a win for Lindows.

“We’re quite pleased [to be] given a finding in our favor on a key legal issue,” Harris said. “It definitely should go back to trial, and we’re very excited about the opportunity to have our day in court.”

When asked why Lindows did not just change the company name along with the product name to avoid confrontation with Microsoft, Harris responded:

“One, because we’re right, and two, the Linspire rebranding was necessary given all of the lawsuits around the world. But ultimately we hope to be successful and retain the Lindows name.”

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