February 11, 2004 10:07 AM PST

Lindows wins one against Microsoft

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The 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.


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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 necessarily valid.

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.

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.

Silicon.com's Jo Best reported from London. CNET News.com's David Becker contributed to this report.

 

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