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December 4, 2002—In this issue:
1. NEWS AND VIEWS
- Java Hearings: Sun 1, Microsoft 0
- Judge to Rule on Windows Trademark Validity
- Happy 10th Anniversary SQL Server!
- Attend Our Free Tips & Tricks Web Summit
3. CONTACT US
See this section for a list of ways to contact us.
1. NEWS AND VIEWS
(contributed by Paul Thurrott, [email protected])
Microsoft got a little jolt on the first day of hearings to determine whether it should be forced to bundle the Sun Microsystems version of Java with Windows XP. Federal District Court Judge J. Frederick Motz described Sun's request as an "attractive remedy" to "the distortions of the market wrought by the violations Microsoft has done." In other words, the judge is already leaning toward forcing Microsoft to bundle another company's product with its monopoly OS.
In response, Microsoft lawyer David Tulchin told Judge Motz that Judge Colleen Kollar-Kotelly had rejected a similar Windows-bundling scheme. But Motz said he isn't bound by Kollar-Kotelly's ruling. "I was surprised at the vehemence with which Judge Kollar-Kotelly rejected \[the Java bundling proposal\]," Motz said. "\[This remedy is\] so much nicer than trying to have economists come back after the fact and try to figure out what would have been."
Sun's rationale for forcing its competitor to bundle Java is that Microsoft is using its monopoly OS to promulgate its Microsoft .NET technology, which Sun says the company designed as a response to Java. "Microsoft has an illegitimate competitive advantage," Sun attorney Lloyd R. Day told Judge Motz, "and the harm is happening now."
However, Microsoft got in a few digs. Questioning Sun Vice President Rich Green, Tulchin referred to a March 2002 speech in which Green said that more than 50 percent of software developers use Java and that 1 billion wireless devices will include the technology by 2006. "That's what the future looked like? Pretty rosy?" Tulchin asked Green. "\[Sun doesn't\] tell you they expect to have dominance in cell phones, handheld devices, and application servers," Tulchin told the court, holding up a Research In Motion's (RIM's) BlackBerry device, which uses Sun, rather than Microsoft technology. "They want you to leave their dominance in the rest of the market alone."
Microsoft and Sun have been fighting over Java for several years. After Microsoft licensed Sun's cross-platform programming and runtime environment in 1997, Sun sued Microsoft for altering its Java version and making it incompatible with other Java versions. Facing defeat, Microsoft later settled the case and paid Sun $20 million. But after bundling an outdated Java version in the XP beta, the company later announced that it would drop Java from Windows and make it a separate download, available only until 2004. Sun says that shipping an outdated Java version is, in some ways, worse than not shipping Java at all.
The Sun lawsuit isn't Microsoft's only legal concern these days. Judge Motz is also presiding over similar lawsuits from Be, burst.com, and Netscape (now a unit of AOL Time Warner). In addition, various class-action lawsuits are pending against the company, as well as the Massachusetts and West Virginia appeals of the federal antitrust case and a European antitrust investigation.
Linux distribution maker Lindows.com announced yesterday that it has submitted its final legal filing that challenges the validity of Microsoft's trademark on the term Windows. Lindows.com filed the lawsuit after Microsoft sued the open-source company for its use of the term Lindows, which Microsoft says is too close to Windows and could confuse consumers. A US District Court in Seattle will now determine whether Windows is a valid trademark; Judge John C. Coughenour will issue a ruling or set a date for further hearings within 30 days.
Microsoft filed its initial trademark-infringement suit in December 2001, and Judge Coughenour has since denied Microsoft's two requests for an injunction that sought to bar Lindows.com from using the Lindows name. During injunction hearings earlier this year, the judge questioned the eligibility of Microsoft's trademark of the term Windows, which was a generic computing term for years before Microsoft received the trademark. Indeed, as Lindows.com discovered during its legal fight, the United States Patent and Trademark Office twice denied Microsoft trademark status for the term and awarded a trademark to the company only after years of efforts under somewhat suspicious circumstances (see URL below).
"We believe the indisputable historical record clearly demonstrates that the term 'windows' was generic when Microsoft first began using it in the early 1980s," said Lindows.com CEO Michael Robertson, who first rose to fame when he launched MP3.com. "We're hopeful, now that all the papers are in front of the judge, that he will hand down a ruling which will allow us to get past these courtroom battles and allow us to focus exclusively on our goal of bringing choice to computer buyers."
Although Lindows.com's business viability might be questionable (its Linux distribution has suffered from poor reviews and early, unsubstantiated claims that it would run Windows applications), the company has effectively turned Microsoft's trademark-infringement claim into an all-out brawl that threatens the software giant's core product. Judge Coughenour noted in March that "Lindows.com has met its burden of proof in rebutting the validity of the Windows trademark and the 'presumption' drops out of the case." This means that the burden of proof moves to Microsoft, which has had trouble meeting legal requirements for a trademark. "Microsoft supplies minimal affirmative evidence to support its claim that Windows is a descriptive mark that has acquired secondary meaning and is thus protectable under the Lanham Act," Judge Coughenour said.
Lindows.com also has legal precedent in its favor. A 1979 court ruling established the rule "once generic, always generic," which means that companies can't trademark generic terms such as windows even after years or decades of use as product names. Companies have repeatedly tested this rule in court, but the courts have always upheld it. In fact, in the 1979 case cited previously, a federal court ruled that "a 'generic' word cannot be validly registered as a trademark even if there is proof of secondary meaning. The reason is plain enough. To allow trademark protection for generic terms ... would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are."
What will happen if Microsoft loses its trademark is unclear. The company has probably explored various options, including renaming the product line, although such an action would be expensive and confusing for consumers. The company probably started to use naming modifiers (e.g., XP, 2000, NT) for its Windows products at least partially to protect the products from infringement because a name such as Windows XP is far more specific than Windows \[version\] 5.1. Thus, Microsoft might decide to keep the name Windows and continue using unique modifiers for each version. But for all the companies, large and small, that have suffered Microsoft's legal wrath for using the term Windows, a ruling against the company could have interesting repercussions.
Microsoft Loses Lindows Injunction Request; Ruling Questions Right to Windows Name
Yesterday, based on information that Microsoft published on its public Web site, I reported that Microsoft had released Windows .NET Server (Win.NET Server) 2003 Release Candidate 2 (RC2). However, the company alerted me late yesterday that the Web site was in error and that it hasn't yet finalized RC2. Microsoft told me that it will complete Win.NET Server RC2 later this week. My apologies for any confusion this error caused.
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