Lindows forges ahead in trademark suit

Lindows.com Inc., the Linux software startup being sued by Microsoft Corp. for alleged trademark infringement, has withdrawn its motion to dismiss the suit and last week released a summary of its battle plan as the case proceeds.

Lindows.com is developing an operating system called LindowsOS that allows users to run applications designed for Microsoft's Windows as well as the open source-operating system Linux.

Two months after Lindows.com unveiled its company and software product in October, Microsoft filed a lawsuit claiming that similarities between the names of the two operating systems could be confusing to customers. Microsoft is seeking to stop the company from distributing the operating system under the Lindows name.

Lindows.com filed a motion to dismiss the case on Jan. 2, urging the Washington state court to throw out Microsoft's case or to move the venue because Lindows.com does business outside the Washington court's jurisdiction. However, a month later Lindows.com withdrew that motion, according to court records.

A court hearing is now set for Feb. 27 in the U.S. District Court for the Western District of Washington, when the two companies are set to make oral arguments. A judge could make a ruling as early as that hearing.

Now headed to court, the San Diego, California-based software startup said it plans to attack Microsoft's trademark on the Windows name, according to opposition papers filed Thursday by Lindows.com.

The term "windows" has been used by hundreds of independent companies and products, Lindows.com said, and is used generically in the software industry to describe a feature of a graphical user interface. Coupled with a number of dissimilarities between the companies' logos and software products, Lindows.com said that Microsoft has so far failed to show any likelihood of confusion.

Lindows.com also argued that Microsoft has a rocky history with its trademark and has had difficulties enforcing it. Three years after applying for ownership of the Windows name in 1990, the U.S. Patent and Trademark Office (USPTO) initially rejected Microsoft's application, according to the Lindows.com filing. The USPTO reversed its decision that year after Microsoft filed an appeal.

Lindows.com also detailed a survey conducted by San Diego State University's marketing department, which polled 750 computer users about the Lindows.com name. In the survey, sponsored by Lindows.com, none of the respondents said they confused the two operating systems. Ninety-six percent of those polled said they use Windows currently, according to the survey.

Donald Sciglimpaglia, a professor of marketing at San Diego State who conducted the survey, concluded in the Lindows.com filing that "there is no likelihood of confusion as to whether Microsoft makes, sponsors or licenses LindowsOS, and that there is no likelihood of confusion as to whether Microsoft owns or operates Lindows.com."

Meanwhile, Lindows offered a preview version of its operating system in late January to subscribers of its "insiders" program who paid US$99 for early access to the software.

The company said it has received good feedback from early users regarding the operating systems' compatibility with Microsoft Office 2000. So far LindowsOS can run Microsoft's Word, Powerpoint, Excel and Internet Explorer with relative success, said John Bromhead, vice president of marketing for Lindows.

It has also detailed more about how the product will run on a computer when it is released commercially later this year. LindowsOS can be installed on a desktop or laptop to run alongside Microsoft Windows, a process that the company said can be completed with three mouse clicks.

When a computer is running both operating systems, it uses a single hard drive so users can share files and applications between the two operating systems. For example, if a Word document is saved while a user is running Windows, that file can be accessed from the same directory when a user reboots that machine in Lindows, and vice versa. In addition, all of a users' browser "favorites" saved in Internet Explorer appear when running the browser in both operating systems, the company said.

Applications, such as Office, can also be shared between the two operating systems if a user has installed those applications prior to the installation of LindowsOS, the company said. Applications installed on a computer after LindowsOS is already running could only be accessed in one of the two operating systems, Bromhead said.

With a $99 price tag, Lindows.com is aiming to slowly convert computer users without a hard transition to the competing operating system by running LindowsOS alongside Windows.

"The ultimate goal is to migrate people off of Windows," Bromhead said.

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