Appeals Court Denies Microsoft Petition

Microsoft lost a battle of semantics against commercial
Linux vendor Lindows on Monday, when an appeals court refused to consider
the software giant’s interpretation of the term “windows.”

The Ninth Circuit of the U.S. Court of Appeals denied Microsoft’s petition
that the jury in the trademark case against Lindows — a name that bears
striking resemblance to the Windows operating system (OS) used in more than
90 percent of the world’s PCs — should only consider the term as it is
publicly recognized today.

Lindows, on the other hand, has been trying to convince judges that a jury
should focus on whether the term was generic at the time of the release of
Windows 1.0 in November 1985. If it was a generic term when Windows hit the
market, Lindows lawyers argue, Microsoft should not be able to continue with
trademark infringement claims.

In a 16-word ruling, judges denied Microsoft’s request, filed at the appeals
court shortly before the jury trial was to begin in Seattle on March 1.
Judge John Coughenour, the district court judge presiding over the Seattle
case,
rejected Microsoft’s interpretation of the term in February
, prompting the Redmond, Wash., company to appeal.

A window is a common enough computer term for the
rectangular display window used to contain applications, though it’s
commonly capitalized to refer to the Microsoft OS.

Lindows officials expect the trial to resume in the second half of this
year. Microsoft’s Bill Gates and Steve Ballmer are scheduled to testify, as
is Michael Robertson, Lindows’ CEO.

“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,” Robertson said in a
statement. “We’re looking forward to getting this trial back on the fast
track and presenting our piles of evidence . . . which clearly shows the
generic use of ‘windows’ before Microsoft commandeered the world.”

Microsoft officials were not immediately available for comment on the ruling
at press time.

The ruling is good news for Lindows, a company looking to
go public this year and has been faring poorly in similar
litigation overseas.

A ruling in Amersterdam earlier this year prompted the company to change the
name of its product line to Linspire
and revamp their Web site so Dutch users could not access the Lindows name
online. Microsoft recently took the Linux company back to the Amsterdam
court for not fully
complying with the ruling.