Article - Lindows Wins One in Fight Over Windows Trademark

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Source: http://www.law.com/regionals/ca/stories/edt0319d.shtml
December 4, 2003

Lindows Wins One in Fight Over Windows Trademark
By Brenda Sandburg
The Recorder March 19, 2002
In a setback for Microsoft Corp., a federal judge in Seattle raised questions about the validity of the company's "Windows" trademark.
The software giant had sought a preliminary injunction to block Lindows.com from using a name that differed from its Windows mark by one letter. In denying Microsoft's request, U.S. District Judge John Coughenour ruled Friday that the company had failed to show it would likely succeed in proving trademark infringement.
"Lindows.com has presented sufficient evidence to rebut the presumption of validity of the Windows mark," Coughenour wrote. "It is necessary to emphasize that, at this nascent stage in the litigation, the court's determination that there are serious questions regarding whether Windows is a non-generic name and thus eligible for the protections of federal trademark law is not a conclusive finding that the trademark is invalid."
Daniel Harris, a partner at Brobeck, Phleger & Harrison who represented Lindows.com, said Microsoft was favored to win this battle.
"They came in looking for a slam dunk and I think [the judge's ruling] surprised a lot of people," Harris said. He said that was in part because the public is not aware of the history of the trademark and the widespread use of the word "windows" by other companies.
Microsoft has not decided whether it will appeal the decision. "We were disappointed with the ruling but we intend to pursue our claim in order to protect the Windows trademark," said company spokesman Jon Murchinson. "Windows is one of the most recognizable brands in the world."
Founded last year by Michael Robertson, the founder and former CEO of the online music site MP3.com Inc., Lindows.com is developing an operating system called Lindows OS. The system can run software applications developed for both the Linux and Windows operating systems.
Microsoft began marketing Microsoft Windows 1.0 in 1985. Since then the company has developed nine updated versions of the system software. Microsoft applied for registration of the Windows trademark in 1990 and was issued the trademark in 1995.
In his ruling, Coughenour said Lindows.com had presented evidence in five categories -- media usage, dictionary definitions, Microsoft's use of the term, competitor's use of the term, and testimony of persons in the trade -- to support its claim that the Windows trademark is generic.
He leaned toward the defendant's argument that Windows retains some of the generic meaning it had when Microsoft filed a trademark registration. "Microsoft Windows' dominance in the modern computing environment makes it easy to describe these graphical features as "windows" in hindsight, but Lindows.com's evidence makes clear that the same term was used by the industry and the press during the early development of this now-standard feature."
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