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A judge late Friday denied Microsoft's request for a preliminary injunction against startup Lindows.com , thus allowing the startup to continue selling its operating system under the name Lindows.

Lindows is a version of Linux that its maker claims can run Windows programs.

The ruling could also be the first step leading to Microsoft's loss of trademark protection for its Windows operating system's name, though U.S. Federal District Court for the Western District of Washington Judge John C. Coughenour said in his ruling that Friday's decision was only preliminary and "not a conclusive finding that the trademark is invalid."

Redmond, Washington-based Microsoft had argued that the close similarity in the Lindows and Windows names would confuse customers and dilute its trademark for Windows products. Microsoft also argued that Windows would be "tarnished" since the LindowsOS would likely not run all Windows applications flawlessly upon release. San Diego-based Lindows.com has said that its operating system will run many, but not all, Windows applications. Microsoft sued Lindows in December, asking the court to bar the company from using the Lindows name and for damages.

For a preliminary injunction to be granted, a judge must see a likelihood of success at trial and irreparable harm being done to the party making the motion. Judge Coughenour did not find these conditions met, he wrote, and also turned aside the "tarnishing" argument, saying "the court views Microsoft's tarnishment argument as specious. Any software program is likely to have some defects upon release, and Microsoft has hardly been immune to these problems."

In what may be the more significant part of the ruling, the judge laid the groundwork for revoking Microsoft's trademark on Windows. He declined, however, to directly address the issue so early in the case, citing timing concerns and the large amount of evidence needed to overturn a trademark.

In his ruling, however, Coughenour noted that the U.S. Patent and Trademark Office (USPTO) had rejected Microsoft's initial trademark filing numerous times in the early 1990s. In one of those rejections, the USPTO wrote that "the term Windows was in existence, and known, prior to adoption by the applicant. Since the term is a generic designation for the applicant's goods, then, no amount of evidence of de facto secondary meaning can render the term registerable."

The USPTO also cited multiple filings by then-Microsoft rival Borland Software Corp. for trademarks on products which included the word Windows.

However, in 1995, the USPTO reversed field and "approved registration of the Windows trademark with no analysis or explanation for its reversal," the judge wrote.

The judge also wrote that Microsoft had weakened its case by not taking action against companies that used "Win" or "Windows" in their names or the names of their products.

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Sam Costello

Computerworld
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