Lawyers: even Microsoft confused over Vista marketing

A Microsoft product manager couldn't correctly explain the "Vista Capable" marketing slogan, according to recent filings in a lawsuit that claims the company misled consumers with a prerelease Vista campaign last year.

The case, first filed in March by Washington state resident Diane Kelley, charged Microsoft with deceptive practices in letting PC makers slap a "Vista Capable" sticker on PCs, when "a large number" of the machines would be able to run only Vista Home Basic, the simplest version of the operating system.

About two weeks ago, lawyers for Kelley requested that the lawsuit be given class-action status, which would open the plaintiff list to all US residents. Last week, Microsoft opposed that move in its own filing with the federal court in Seattle.

Microsoft argued that it spent considerable time and effort educating the public and providing information to its OEM hardware partners about the Vista Capable program, as well as a separate-but-related logo that labeled some PCs in late 2006 as "Premium Ready." Both programs and their associated stickers were used by Microsoft and computer makers to sell Windows XP systems in the last quarter of the year because Vista's retail release had been delayed until January, after the holiday sales season.

"From the inception of the WVC [Windows Vista Capable] program, Microsoft emphasized that not all Windows Vista Capable PCs were equal," Microsoft said in its November 19 filing. "As Microsoft repeatedly told the public, 'premium features and advanced experiences' such as Windows Aero would require a PC labeled 'Premium Ready.' "

But in a deposition taken by Kelley's lawyers that was included in their November 9 brief, a Microsoft manager couldn't correctly explain what "capable" meant in the Vista marketing blitz.

"Capable is a statement that has an interpretation for many that, in the context of this program, a PC would be able to run any version of the Windows Vista operating system," said Mark Croft, the company's director of marketing. " 'Ready' may have [prompted] concerns that the PC would run in some improved or better way than -- than 'Capable,' therefore the word capable was deemed to be a more fitting word for this program."

Actually, the Vista Capable sticker meant that the machine would not necessarily be able to run any version of Vista, but only a version. A Vista Capable machine, for example, might be able to run Vista Home Basic, the lowest-priced and least-capable version in the lineup, but not the more advanced Home Premium. (Systems also tagged with the Premium Ready sticker, however, would be able to run all versions of the operating system, including the top-end versions such as Ultimate or Home Premium.)

After a 10-minute consultation with Microsoft's lawyers, Croft corrected himself. "I made the statement that ... Capable would be able to run any version of Windows Vista, whereas, in reality, our intent with Capable was that the system would be able to run a version of Windows Vista," he said. "So quite an important difference in the two -- two terms there."

When Kelley's lawyers asked Croft if Microsoft had done any market research to determine if the term Vista Capable "would cause any consumer to make the very mistake that you just made," Croft acknowledged that the company had not.

Last April, just weeks after Kelley filed her lawsuit, Microsoft denied that it had changed its online description of a Vista Capable PC's capabilities. "We have made no changes to how we communicated Vista Capable in the past few months, other than to make some [verb] tense changes to indicate that [Vista] had shipped," a company spokeswoman said at the time.

Microsoft also disputed the contention that Vista Home Basic is, as Kelley's lawyers have argued, nothing more than "a gimmick Microsoft designed" to help computer makers unload "soon-to-be-obsolete PCs that Microsoft knew lacked the horsepower to run the 'real' Vista."

"Windows Vista Home Basic represents a major advancement over Microsoft's earlier operating systems," said the company in its filing last week, listing desktop gadgets and parental controls as two features that distinguish Home Basic from the earlier XP Home.

US District Judge Marsha Pechman will rule on the class-action request. A date for that ruling has not been set.

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Gregg Keizer

Computerworld
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