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By Steven Vaughan-Nichols  |  Posted 2004-03-17 Print this article Print

In Lindows Motion for Anti-suit Injunction and Declaration of Non-enforceability of Foreign Interim Order the San Diego-based company states, "If Microsoft is permitted to continue on its current course, it will successfully evade this Courts rulings. Microsoft will also moot Lindows.coms key fraud and genericness defenses by prosecuting in countries that do not afford such defenses. Additionally, the practical effect of an adverse ruling—shutting down the web site and/or changing the name of the company and product—would moot over two years of litigation in this Court."

In short, "Without an anti-suit injunction, Microsoft can effectively conduct an end-run around this Courts jurisdiction and substitute the judgment of a foreign court for a United States jury," Lindows claims.

So it is that " respectfully requests the Court to immediately enjoin Microsoft from prosecuting any lawsuits outside the United States and to declare the Amsterdam preliminary injunction as non-recognizable and unenforceable."

Lindows may have trouble winning its point, though, according to Thomas E. Moore III, an intellectual property attorney and partner with the law firm of Tomlinson Zisko LLP in Palo Alto, Calif.

"This is a live-by-the-Internet, die-by-the-Internet situation for Lindows," Moore said. "On the one hand, Lindows seems to have a point: The reason that Microsoft is filing cases around the world appears to be to circumvent the results in its own backyard. On the other hand, has a global reach by virtue of the Internet, and the price for that global reach is the potential for being subject to the jurisdiction of the courts of other nations and to those other nations distinct trademark laws. The judge is going to have to look hard at the equities, or really inequities, of Microsofts conduct, because otherwise the judge is going to have to defer to international comity and allow the other cases to proceed."

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Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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