Lindows Cant Block Microsoft From Foreign Courts

Coughenour ruled that, "[f]aced with an absence of precedent for an order enjoining foreign trademark litigation, the Court finds no reason to interfere with the judicial proceedings of other foreign nations."

San Diego-based Lindows had asked Coughenour to move against these proceedings because a preliminary judgment in Holland had already stopped the company from stop selling its operating system in the Netherlands, Belgium and Luxembourg (the Benelux countries) and Microsoft was continuing to try to block Lindows operations under its Lindows name in Canada, Finland, France and Sweden.

Coughenour had proposed a deal, by which Microsoft would be allowed to appeal an earlier ruling of his that a jury would decide whether "windows" had been a generic term before it was trademarked and, in return, Microsoft would cease its efforts to get foreign courts to stop the sales of Lindows until the U.S. case is decided. Microsoft turned the deal down.

This had been an unusual proposal in the first place. "I would have to say that the proposal is not one that I have ever seen in a trademark case, but the suit in many ways is unusual," said Robert P. Andris, intellectual property attorney partner in the Redwood City, Calif., office of the law firm of Ropers Majeski Kohn & Bentley. "Courts have the inherent power to weigh the equities of a situation and fashion remedies based on the chances of success and the potential harm that could befall the parties. It appears the court is attempting to fashion a remedy that will allow the survival of a small competitor in a case which it has indicated [by its prior rulings] that it thinks will go against the industry leader."

Next page: Keeping Benelux citizens off Lindows Web site.

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