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Microsoft asks court to reconsider Lindows ruling Story by Sam Costello, IDG News Service APRIL 03, 2002 ( IDG NEWS SERVICE) - Microsoft Corp. has filed a motion in federal court for reconsideration of a preliminary injunction ruling that allowed start-up company Lindows.com Inc. to continue to use the name Lindows. The court's original ruling, handed down March 15 in U.S. District Court for the Western District of Washington, allows Lindows to continue using its name for the company and the Linux operating system that it's developing, pending a trial in the trademark infringement case. Microsoft filed the suit in December, claiming that users could be confused by the similarities between the two operating system names. San Diego-based Lindows claims that its operating system will run not only Linux applications, but also a broad range of Windows programs directly from Linux. The ruling denied Microsoft's motion to bar Lindows from using the name because Microsoft failed to provide enough proof that it would be harmed by the start-up. Judge John C. Coughenour also wrote in his opinion that Microsoft's claim to the Windows trademark might be precarious, as the mark was both generic and had been rejected multiple times by the U.S. Patent and Trademark Office before its approval in 1995. Coughenour declined to fully address the Windows trademark issue in his opinion, however, writing that it was a matter for a later date. Microsoft filed the motion for reconsideration rather than an appeal because reconsideration is the fastest way to get the matter addressed, said John Merchantson, a Microsoft spokesman. If the issue is reconsidered, Coughenour will hear the matter, rather than the Appeals Court. In its motion for reconsideration, Microsoft argued that the court reached "an incorrect result by asking the wrong question" in its ruling on the preliminary injunction issue. The court had "a fundamental misapprehension of the test of 'genericness,'" and it should have examined whether Windows was a generic name in the operating system market, not a generic term generally, Microsoft wrote. The company's filing was made available at Lindows.com's Web site. Generic terms cited by Microsoft in its motion include light beer and soap, general product categories, not synonyms for specific products. In an attempt to rebut Lindows' documentation showing that the term window or windows had been used in the computer industry as far back as the 1980s, Microsoft argued that a trademark is generic only when it's used that way by consumers. A term isn't generic when it's used that way by people within a specific industry, Microsoft wrote. Windows isn't used by consumers as a synonym for operating system, the company said. "We believe that consumers know that Windows refers to our trademarked operating system and is not a general term for operating systems," Merchantson said. To bolster that argument, Microsoft cited surveys prepared for its trademark applications in 1993 and 1995 that found that a majority of consumers thought of Windows as a Microsoft trademark, even though it wasn't at the time. In a statement by the company yesterday, Lindows said Microsoft's motion was an attempt to drag out the proceedings and increase legal costs for the company. Microsoft has until April 15 to appeal the judge's ruling, according to Lindows. |