Lindows.com last week filed for a
summary judgment in defense of the patent infringement suit filed by
Microsoft nearly a year ago over Lindows.com’s use of the term “lindows” in
its products and branding. The San Diego computing startup is hoping the
U.S. District Court in Washington finds in its favor, claiming that Microsoft
has no iron-clad claim to the “windows” term.
Over the past year, Lindows.com has spent its time trying to sway presiding
Judge John C. Coughenour with its argument that graphical user interfaces
that feature the use of “windows” have been referred to as “windows
programs,” “windowing interfaces,” “windowing systems,” and “window
managers” since the late ’70s.
“Thus, the term “windows” has been used as a generic term for a category of
computer software products for over 20 years. This indisputable fact is
dispositive in this litigation and its proof justifies the entry of summary
judgment in favor of defendant Lindows.com, Inc.,” Lindows.com said in a
public statement on its Web site.
Lindows.com further argues that: “Because there is no reasonable dispute
that the terms “windows,” “window,” and “windowing” were used generically to
refer to the category of graphical operating environment products before and
after Microsoft named its Microsoft Windows product in 1983, summary
adjudication of this issue is appropriate. As such, Lindows.com requests a
finding that Microsoft’s asserted WINDOWS trademarks are invalid for
genericness and that judgment be entered in favor of Lindows.com on
Microsoft’s claims of trademark infringement, trademark dilution and unfair
competition.”
In defending the right to make, sell, and dub its Linux-based operating
system “Lindows” to compete with Microsoft’s Windows OS, the concern,
founded by MP3.com Founder Michael Robertson, has even gone so far as to
pull quotes from Microsoft Chairman and Chief Software Architect Bill Gates’
past court depositions to make its case that the “windows” term fits the
“generic use” bill.
Thus far, Lindows.com’s argument has worked for Coughenour. Microsoft filed
an injunction motion last March to have Lindows.com halted from using the
Lindows name and releasing a competing operating system called LindowsOS.
However, Judge Coughenour refused, noting that Microsoft’s argument that
Windows is not a generic name “flawed.”
Coughenour wrote: “Through its own use of the evidence, Microsoft
essentially admits that these terms [Windows and variations] refer to the
genus of products that have windowing capability.”
The judge pointed out references to “windows” in press and advertisements
before Microsoft Windows was introduced in November 1983, and generic
definitions of “windowing environment” and “windowing software” in the
Microsoft Computer Dictionary.
Microsoft asked for a reconsideration but was refused. The Redmond, Wash.
software power was unavailable for comment as of press time.
