As expected, U.S. District Judge John Coughenour made a quick decision on Lindows.com Inc.s request for an injunction to stop Microsoft Corp. from continuing its international legal campaign against the Lindows name and trademark. It wasnt the decision Lindows had been hoping for.
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.”
Lindows lawyers argued that Microsoft is going to foreign courts in an effort to evade the U.S. courts jurisdiction and put San Diego-based Lindows out of business by suing the company on the same trademark violation in multiple foreign jurisdictions. Specifically, they argued that it is impossible to keep Benelux citizens from visiting its Web site. The site currently bears a prominent warning that, “Pending Lindows appeal visitors from the Netherlands, Belgium, and Luxembourg are not permitted to access the Lindows.com website or purchase Lindows products.”
This, however, might not stop the Dutch court from fining Lindows a daily fine of 100,000 euro (approximately $123,500), should it find that this warning is insufficient. If that proves to be the case, Lindows would be forced to shut down its site. This, in turn, Lindows lawyers said, might force Lindows to go out of business and to change its name regardless of how the U.S. court eventually rules on its trademark dispute with Microsoft.
Now, though, the court has decided not to interfere with Microsofts efforts against Lindows in foreign courts, and so Lindows will have to try a new track.
In a March 18th e-mail to LindowsOS subscribers, Lindows CEO Michael Robertson indicated what this would be when he wrote, ” Were looking for a strategy which would allow us to continue to operate in impacted countries. This may mean that Lindows needs a temporary alternative name in isolated locations. Its tremendously disruptive to a business to change a name or add an alias, but it may be the only way in the short-term that we can operate in certain places. I want to stress that we have no intention of changing our corporate name, that will certainly remain Lindows. Were only looking for suggestions for this alternate name to be used selectively, where appropriate. As costly and troublesome as it may be to operate under a different moniker, we do have a strong commitment to battle for choice around the world—especially in places where Microsoft doesnt want choice to take root.”
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