The 9th U.S. Circuit Court of Appeals on Monday denied Microsofts appeal that the term "windows" be considered only as it is understood by the public today—not as it was when the companys Windows was introduced in 1985—as the companys trademark litigation against Lindows continues.
The case has been sent back for trial to Judge John Coughenour of the U.S. District Court in Seattle, who issued the order that Microsoft Corp. was appealing.
It has also had to defend itself against numerous Microsoft legal actions in Europe. But according to lawyers familiar with the case, this latest decision bodes well for the desktop Linux distributor.
"Were looking forward to getting this trial back on the fast track and presenting our piles of evidence—videos, magazines, internal Microsoft documents—which clearly show the generic use of windows before Microsoft commandeered the word," Lindows CEO Michael Robertson said in a statement.
"This outright denial of Microsofts appeal confirms that the trial will focus on how consumers and the software industry used the term windows in the 1980s, before Microsoft dominated the landscape."
Michael R. Graham, intellectual property attorney and partner with Chicago-based law firm Marshall, Gerstein & Borun LLP, said he considers this a major move in the ongoing legal war between Microsoft and San Diego-based Lindows.
"Although it is merely a straightforward denial of Microsofts petition for permission to appeal, this is a significant decision," Graham said. "And one which substantially strengthens Lindows/Linspires challenge of the Windows trademark.
"This ruling is vital to Lindows/Linspires case because if a term is generic, or once it becomes generic, trademark law holds that no amount of advertising or exclusivity of use can make that term a protectable trademark," Graham said.
The company "hopes to prove that prior to the adoption of Windows by Microsoft, windowing and windows were used for a particular feature of computer graphic user interfaces: namely, the ability to open files within so-called windows and of opening multiple windows on the computer screen to work on different programs or files.
"Although Microsoft owns numerous registrations for trademarks which include the Windows designation, it only gained these without disclaiming exclusive rights in the Windows term by claiming that the term has gained trademark distinctiveness by reason of its advertising, marketing and sale of goods under the mark, a so-called Sec. 2(f) basis," Graham said.
"But if the jury determines that the windows term was not only merely descriptive, but was in fact generic prior to Microsofts use of the term, then no amount of advertising, sales or secondary meaning would entitle Microsoft to monopolize the generic term," he said. "Thus, this is an important victory for Lindows and a defeat for Microsoft."