Glenn Peterson, intellectual property attorney and shareholder with the Sacramento-based law firm McDonough Holland & Allen PC, agreed when he said, "The denial of Microsofts appeal does not bode well for its trademark infringement case directed at Lindows." "The trial judge has made it clear that this case will be controlled by whether windows was a generic term at the time Microsofts Windows 1.0 entered the market in November 1985," Peterson said."The judge went even further, however, and stated that he would not instruct the jury that, if windows was a generic term prior to November 1985, Microsoft could still have a protectable trademark so long as the primary significance of the term wasnt generic. "Stated in plain English, this just means that the generic term originally was understood to refer to something else, but now everyone knows it refers to Microsofts products," Peterson said. "Combined, these statements by the judge make indelibly clear that, if Windows is found by the jury to be generic prior to November 1985, then it cannot be the subject of trademark protection under any circumstances." Thats bad news for Microsoft, but Peterson said he thinks theres worse in store for the Redmond, Wash., software giant. "Heres the really daunting aspect for Microsoft: If it is determined in this trial that windows is a generic term, then Microsofts Windows and Windows-related trademarks are invalidi.e., they cant be enforced under any circumstances," he said. "This means much more than a win for Linux. It means a hall pass for all competitors in the software marketplace. Stated simply, any person or company who wishes to utilize windows in their name or marketing material would be free to do so without fear of suit by Microsoft. "In the final analysis, this would mean a small win for Linux, because its rights will be no greater than the general publics, but a huge loss for Microsoft," Peterson said. "This is what happened to nylon and teflon. They used to be trademarks but became generic. Today, you can go into any department store and find hundreds of products that use those words on their labels and packaging. "This is also why Xerox would prefer that you ask for a photocopy instead of a Xerox copy," he said. "Trademarks can become generic through common usage. "In the Microsoft case, Lindows is arguing the converse scenario, i.e., that windows was generic before Microsoft adopted itLinus [Torvalds] is fond of saying commandeered itas a trademark." Peterson said he doubts that the case will go to trial. If it does, he said, "It will become a zero-sum game for the contestants. One side will lose big, and the inevitable appeal that follows will become as familiar to software purveyors as Roe v. Wade is to law students. I will not be surprised at all to hear a settlement announced before Thanksgiving this year." If it does go to court, the trial is on a timetable to take place in the second half of 2004 in Seattle, with Coughenour presiding. The trial is expected to last about two weeks, with each side having one week to present its case. Witnesses already designated to testify include Bill Gates, Microsofts chairman and chief software architect; Steve Ballmer, the companys president and CEO; and Lindows Michael Robertson. Check out eWEEK.coms Linux & Open Source Center at http://linux.eweek.com for the latest open-source news, reviews and analysis.
"The judge made clear that this issue would be controlling at trial and also made clear that he would instruct the jury that generic-ness should be determined by the circumstances existing prior to Windows 1.0 going to market.