Besieged in Europe, where it recently has had to cease doing business in the Netherlands, Belgium and Luxembourg, Lindows.com Inc. has submitted a motion to the U.S. District Court in the Western District of Washington asking the court to halt the flood of global trademark lawsuits Microsoft Corp. has filed against it.
While Lindows.com has prevailed against Microsofts multiple requests to have the company shut down in the United States, it has not fared so well in Europe. There, Microsoft has been successful in getting the Netherlands, Belgium and Luxembourg (the Benelux countries) courts to forbid Lindows from doing business or face a 100,000 euro ($123,410) a day fine. In addition, Microsoft has had some success in similar cases against Lindows in Finland, France and Sweden, and the Redmond, Wash., company has recently filed another such case against Lindows in Canada.
Lindows tried to avoid the Benelux court fine by changing its name in the Benelux to “Lin—s” (Lindash). But the attempt failed on Microsofts appeal and Lindows has abandoned this approach.
“Microsoft is purposely delaying the U.S. case from going to trial while they use their monopoly profits to fund a global legal assault on our small company to halt the adoption of Linux,” Michael Robertson, Lindows.coms CEO, said in a prepared statement. “The U.S. case has been ongoing for over two years and Lindows is looking forward to presenting extensive evidence to a Seattle jury demonstrating that windows is a generic word and that Microsoft secured a trademark only by committing fraud on the trademark office.”
It is true that Microsoft has not had success in the U.S. courts. Indeed, some lawyers think Microsoft may be in danger of losing its Windows trademark, since the Western District of Washington court has ruled in favor of Lindows assertion that the jury should consider the historical use of the term “windows” in graphical user interfaces rather just its current usage as being synonymous with Microsoft Windows.
“On the eve of trial in the U.S., Microsoft has on one hand sought to delay, while on the other hand it has filed over a half-dozen cases around the world seeking the same preliminary injunction that Judge Coughenour twice denied two years ago,” said Lindows lead trial counsel, Daniel R. Harris. “Were asking the court to prevent Microsoft from pursuing these foreign cases until the U.S. case is complete.”
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 “Lindows.com 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, Lindows.com 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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