Windows: Generic or Trademark?

By Sean Michael Kerner

A federal court in Seattle Wednesday issued a ruling seemingly in favor of against Microsoft over the use of the word “Windows.”

The United States District Court Judge John Coughenour flatly rejected Microsoft’s arguments that the jury should consider the meaning of the term in its current day usage. The decision means that the full trial that had been scheduled for March 1, 2004 will not go forward. Instead, a U.S Court of Appeal will rule on the terms of reference for the use of the Windows trademark.

“We are encouraged that the judge granted our request to go to a court of appeal to provide guidance and clarity on this issue before we go to trial,” Microsoft spokesperson Stacy Drake told “Our position is that the Windows trademark should be determined by the usage and understanding of present day consumers.”

Barely two weeks ago, Microsoft won another battle against Linux desktop upstart in Europe. That string of legal victories has now come to an abrupt halt in the United States, says Daniel Harris,’s lead trial counsel

“The rulings are a major victory for,” Harris said in a statement. “Essentially, the Court’s ruling confirms that a company, no matter how much money it spends, cannot buy a word out of the English language.”

The core of the dispute according to Microsoft has always been about San Diego-based Lindows infringing on its Windows trademark. The Court’s ruling however frames it in the context of the validity of Microsoft’s Windows trademark.

“The threshold issue to considering Microsoft’s federal trademark causes of action is the validity of the mark itself,” wrote the United States District Court Western District of Washington at Seattle Case in its’ order (NO.C01-2115C). “If the term is found to be generic, it cannot be the subject of trademark protection under any circumstances.”

The concern has now become at what point in time the jury should consider the usage and trademark of the word Windows. Redmond, Wash.-based Microsoft had been pushing for the court to focus on the current use of the Windows term, however the court ruled that the jury should focus on the timeframe prior to the release of Microsoft’s Windows products, which is 1983 -1985.

The delay means that will continue to be able to use the Lindows name in the United States, at least until a final decision in the case is finally made. Lindows has not been as fortunate in Europe where Courts in Sweden, Finland and the Netherlands have issued injunctions against the Lindows name.

The dispute between Lindows and Microsoft has been going on for over two years and looks like it will go on longer now that the case will go to appeal even before it goes to full trial. A U.S court denied a preliminary injunction by Microsoft against Lindows in 2002.

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