A federal judge threw out Microsoft's request for a preliminary injunction against Lindows.com, maker of LindowsOS, disagreeing that the company's name and product cause confusion in the market. But the most startling and substantial aspect of this ruling deals with Microsoft's trademark for the name Windows. According to the ruling, Microsoft arguably has no legal claim to such a general term, and the judge even questioned the situations under which the company gained such a trademark.
"Although Lindows.com certainly made a conscious decision to play with fire by choosing a product and company name that differs by only one letter from the world's leading computer software program," the 30-page ruling reads, "one could just as easily conclude that in 1983 Microsoft made an equally risky decision to name its product after a term commonly used in the trade to indicate the windowing capability of a GUI."
As noted in the ruling, in the early 1990s Microsoft tried twice--unsuccessfully--to trademark the term Windows, but the United States Patent and Trademark Office (USPTO) turned down the request because the term was too generic and other companies were able to show how hundreds of product names, services, and technologies employed the term. So Microsoft had no choice but to refer to its products as Microsoft Windows, followed by some sort of suffix, such as 95 or NT. But in the mid-1990s, the USPTO silently approved a third request, and the third-party complaints from previous requests were mysteriously absent.
Regardless of the situations under which Microsoft received the trademark, Judge John C. Coughenour said that alleged trademark-violation investigations must first decide whether the mark in question is valid and thus protected under law. Here, he said, Microsoft fails the test. "A generic term ... is not protectable even if it has acquired distinctiveness or secondary meaning," his ruling reads. "\[So\] while the court agrees that the Windows mark has acquired secondary meaning, no degree of secondary meaning will save a generic mark ... no matter how much money or effort \[Microsoft\] pours into promoting the sale of the merchandise. Otherwise a manufacturer could remove a common descriptive word from the public domain."
Predictably, Lindows CEO Michael Robertson said he's happy about the ruling. "We're obviously satisfied with the court's ruling," Robertson noted. "Our hope is that we can move beyond the courtroom and focus on our goal of bringing choice back to the PC business. Microsoft constantly appeals for the 'right to innovate.' I hope \[it\] will allow us to roll out our innovative operating system, which will cost a third of Microsoft's products, without further impedance."
