(NY Times, Registration required)
Glass Panes and Software: Windows Name Is Challenged
..... An upstart company, Lindows.com, is trying to persuade the Federal District Court in Seattle to invalidate Microsoft's trademark on Windows. At issue is the level of legal protection that should, or should not, be accorded to an ordinary word that Microsoft adopted as its own: windows. The litigation so far -- a mounting pile of evidence and briefs -- provides a detailed narrative of the origins and rise of a mega-brand, and a primer on trademark law. And an order by Judge John C. Coughenour, refusing Microsoft's plea for a temporary injunction against Lindows.com, suggests that Microsoft has a fight on its hands against a feisty start-up with fewer than 50 employees.
In January, Judge Coughenour is expected to decide on Lindows.com's motion for a summary judgment -- a ruling from the bench -- that the Windows trademark should be revoked. But that is a long shot. Both sides are preparing for a trial that is scheduled to begin in Seattle on April 7, when a jury is expected to begin weighing whether Lindows is an illegal copycat brand and whether Microsoft's trademark on Windows should be taken away.
Lindows.com is defending a broad principle, its lawyer says. "No company, no matter how powerful, no matter how much money it has spent, should be able to gain a commercial monopoly on words in the English language," said the lawyer, Daniel Harris, a partner at Clifford Chance.
Well, well, well.
This ought to be entertaining, if nothing else.
As a practical issue, it does seem that Lindows ought to prevail. "Windows" is a purely generic term, in and of itself. Not only that, but Microsoft's Windows product wasn't the first one developed, even though it was the most strongly marketed and came to dominate so completely. Even if Microsoft is correct in that the windowing feature of Windows has "secondary meaning", surely the fact that Microsoft didn't develop the feature would invalidate the trademark claim.
It will be interesting to see if the court and the lawyers can lay their hands on anyone or any documentation from the Patent and Trademark Office from 1995 to see why the office decided, apparently without analysis or discussion, to reverse their previous decision to reject Microsoft's initial trademark application. The original rejection would seem to have been the correct decision, really.
One wonders how much of his $372 million Mr Robertson will need to sink into this lawsuit. Regardless of which way the decision goes, it's likely to make it to the Supreme Court, and to take forever to get there. The initial case alone is likely to drag on forever. Pity the poor juror who has to sit through all this technical jargon and endless reams of expert testimony.
Posted by iain at December 30, 2002 06:23 PMComments
