Microsoft asks court to reconsider Lindows ruling

Saying that the court asked the wrong questions and therefore arrived at the wrong answers in its preliminary injunction ruling that allowed Lindows.com Inc. to continue to use the name Lindows, Microsoft Corp. filed a motion for reconsideration late last week with United States District Court for the Western District of Washington.

The court's original ruling, handed down on March 15, allowed Lindows to continue to use its name for the company and the Linux operating system it is developing, pending a trial. Lindows claims that its operating system will not only run Linux applications, but will also be able to run a broad range of Windows programs directly from Linux.

The ruling denied Microsoft's motion to bar Lindows from using the name because Microsoft failed to provide enough proof that it would be harmed by Lindows. Judge John C. Coughenour also wrote in his opinion that Microsoft's claim to the Windows trademark might be precarious, as the mark was both generic and had been rejected multiple times by the U.S. Patent and Trademark Office before its approval in 1995. Coughenour declined to fully address the Windows trademark issue in his opinion, however, writing that it was a matter for a later date.

In its motion for reconsideration, Microsoft argued that the court reached "an incorrect result by asking the wrong question" in its ruling on the preliminary injunction issue. The court had "a fundamental misapprehension of the test of 'genericness,'" as it should have examined whether Windows was a generic name in the operating system market, not a generic term generally, Microsoft wrote. The company's filing was made available at Lindows.com's Web site.

Generic terms cited by Microsoft in its motion include light beer and soap, general product categories, not synonyms for specific products.

In an attempt to rebut Lindows' documentation showing that the term "window" or "windows" had been used in the computer industry as far back as the 1980s, Microsoft argued that a trademark is only generic when it is used that way by consumers. A term is not generic when it is used that way by people within a specific industry, Microsoft wrote.

Windows is not used as a synonym for operating system by consumers, the company said.

To bolster that argument, Microsoft cited surveys prepared for its trademark applications in 1993 and 1995 which found that a majority of consumers thought of Windows as a Microsoft trademark, even though it wasn't at the time.

In a statement issued by the company on Tuesday, Lindows said that Microsoft's motion was an attempt to drag out the proceedings in the case and increase legal costs for Lindows.

Microsoft has until April 15 to appeal the judge's ruling, according to Lindows.

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Sam Costello

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