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Expert: MS Should Be Careful of Lindows Suit

Lindows.com -- the alternative operating system (OS) firm created by MP3.com founder Michael Robertson -- Tuesday filed a motion to dismiss a pending trademark lawsuit filed by Microsoft Corp. , defending itself against the very firm it is trying to compete with.

In December, Microsoft filed a trademark suit against the firm in the U.S. District Court for Western Washington because it said Lindows.com should not be able to use the terms "LindowsOS" and "Lindows.com" to describe its products, arguing that they may be confused with its own, universally-known Windows brand.

"We're not at all asking the court to stop or prevent the company from making the product, we're simply saying it shouldn't use a name that confuses the public and infringes our trademark," Microsoft spokesman Jon Murchinson said in a public statement.

This, according to one trademark law expert, is where Microsoft has to be careful.

Connie Ellerbach, a partner in the Intellectual Property Group of law firm Fenwick & West LLP, told InternetNews.com that Microsoft has so many trademarks involving its Windows brand that the software giant is stating its case to shield both itself and consumers from confusion. While this may be an obvious reason to address the issue, Ellerbach stressed that Microsoft seems to be fighting an uphill battle. For one, she said, it's already set a precedent.

"Microsoft has already allowed a wide array of firms to use their Windows mark for competing products," Ellerbach said.

So, what Lindows.com is trying to do, she said, is show that the software powerhouse has not adequately protected the rights to its Windows mark.

"Lindows would try to make the case under a trademark abandonment law that Microsoft failed to make sure that they are the only ones using [the Windows name]," Ellerbach explained. "Microsoft has to be careful here. The major potential downside is that it could lose its Windows trademark. On the other hand, Microsoft will argue that Lindows.com is trading off its name while confusing consumers."

Lastly, Ellerbach suggested a possible acid test for the firms: one or both firms should conduct a user's survey, asking participants whether or not they would think Lindows.com came from Microsoft. That might be a factor to help the courts decide.

Particulars of Lindows.com's stance

It seems Microsoft is harping on the fact that it believes the start-up has done business in its backyard, Washington state. Lindows.com said this is not true and therefore moved for a dismissal based on a lack of "personal jurisdiction over the San Diego-based company."

Lindows.com Founder and CEO Robertson said that his firm would provide proof that no business was done in Washington, let alone Redmond, and talked about it in a public statement.

"We're looking forward to showing the Court the widespread use of the term 'windows' or variations thereof by literally hundreds of companies which are not endorsed or sponsored by Microsoft. The fact that Microsoft has chosen not to sue these companies demonstrates their true motivation in this case is to crush competition from a promising new technology which threatens their illegally obtained monopoly," said Lindows.com CEO, Michael Robertson.

While none of this legal wrangling would seem to effect the public sector, it does, in actuality. As part of the legal process, Microsoft demanded that Lindows.com turn over its entire database of names, e-mail addresses and physical addresses for parties interested in the pending OS.

Robertson said in a letter on his firm's site that the suit was merely a ploy to prevent Lindows.com's Linux-based and Windows software-compatible OS from coming to market, a hint at the firm's supposed anticompetitive stance. Lindows.com, which vows to offer a sneak preview of its OS soon, plans to sell the finished product for $99.

Robertson also encouraged parties to help his firm's defense by sending the names of products named "Windows Something" or "Something Windows" or even variations on the word windows, which are not from Microsoft.

Ironically, Robertson, no stranger to the court system in his MP3.com days, doesn't miss a chance to take shots at Microsoft's legal history either.

Said Robertson: "We're not happy that a company known for illegal business practices took the unnecessary step of gaining access to our database. In spite of their assurances it will not be used for any purpose outside this case, we've alerted our users of Microsoft's actions and believe this is another way Microsoft is attempting to intimidate a potential competitor."

Lindows.com's motion to dismiss and Microsoft's motion for preliminary injunctions are tentatively scheduled for hearing on February 1, 2002.