Judge denies second Microsoft motion in Lindows case

A U.S. federal judge has denied Microsoft Corp.'s request for reconsideration on a ruling that, if granted, would have barred upstart Linux vendor Lindows.com Inc. from using the name Lindows, citing Microsoft's own evidence as a reason for his decision.

Microsoft had submitted a request for reconsideration of U.S. District Court for the Western District of Washington Judge John C. Coughenour's first ruling, saying that the judge had "a fundamental misapprehension" of the issues and law at stake. On that motion, Coughenour had ruled that Microsoft had not supplied sufficient evidence to prove that it would be hurt by Lindows' use of its name and also suggested that Microsoft's grasp on the trademark for its operating system Windows could be tenuous, as the term "windows" might be generic.

In the new ruling, made Monday, Coughenour ruled that he made no mistakes of law in his original ruling and that he had properly applied the test of generic use to the term "windows." Coughenour based his ruling, in part, on information supplied by Microsoft in its original filings against Lindows. The ruling will allow Lindows, based in San Diego, to continue to use its name pending the outcome of a trial, set to begin in April 2003.

Press reports at the time of Microsoft's introduction of Windows, as well as entries from Microsoft's own computer terms dictionary, show that "windows" is a generic term, Coughenour ruled, a point that Microsoft had been arguing. Frequent references to "window managers" -- a once-common term for a class of programs that control the way windows are drawn and behave on-screen -- in articles submitted by Microsoft are evidence that Microsoft's Windows is a product within a group of products, one part of the test of genericness, Coughenour ruled.

Coughenour further underscored his ruling by citing Microsoft's own advertisements from the early 1980s which describe Windows as a "window manager" or "windowing environment." Microsoft's own computer terms dictionary refers to the company's Windows operating system as a "windowing environment" and "windowing software," the judge noted.

Microsoft's "coupling the company's name with its various Windows versions ... showed that it understood "windows" to denote a class or products," not a specific one, Coughenour ruled.

Lindows, which offers a version of the Linux operating system that it says will run a wide range of programs written for Microsoft Windows without modification, was originally sued at the end of 2001 by Microsoft, which is based in Redmond, Washington. Coughenour denied Microsoft an injunction that would have barred Lindows from using its name in March.

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Sam Costello

PC World
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