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Microsoft Corp. has opened a Canadian front in its continuing legal war with Lindows.com Inc. In this latest move, Microsoft filed a request for a permanent injunction at the Court of Canada in Ottawa, Ontario, last week to stop Lindows.com from using Lindows, LindowsOS and other terms that conflict with Microsofts Windows trademark.
If the Court grants this injunction, it would be a serious blow to the San Diego, Calif.-based Linux distributor. According to Lindows.com, “Canadian customers represent more than 20 percent of Lindows.coms early business.”
Microsoft representative Stacey Drake explains to eWEEK.com: “In response to what is a clear and obvious infringement of its trademarked Windows name, Microsoft has taken steps in Canada to curtail infringing or misleading behavior on the part of Lindows.com.”
Lindows CEO Michael Robertson, however, says that Microsoft is out to kill off Lindows. “Microsofts strategy is to try and bury us with lawsuits. Regardless of the final legal outcome they figure they are winning by forcing us to juggle a large number lawsuits which is time consuming and expensive – especially for a small company. Its frustrating, but nobody said it was going to be easy competing with the richest monopoly in the world.”
Drake denies that this is the case. “Microsofts actions are only about the Lindows name. We are merely asking that Lindows change its name, which is obviously meant to copy the Windows brand. There are many Linux operating system products in the market using their own distinctive names that dont infringe the Windows mark and Microsoft has no trademark issue with them. Lindows can resolve this issue by changing its name and competing under a non-infringing name.”
In Europe, Microsoft has successfully won preliminary injunctions against Lindows. As a result, Lindows.com has adopted a new name in those countries, Lindash, so that it can continue to do business.
However, in the United States, Microsoft has not been successful in getting an injunction against Lindows. Microsoft faces the possibility of having its Windows trademark overturned.
Glenn Peterson, intellectual property attorney and partner with the Sacramento, Calif.-based law firm McDonough Holland & Allen PC, explains, “The Windows/Lindows case is a virtual orgy of trademark issues. The protection of generic terms as trademarks is an intensely controversial issue, and one that arises much more frequently since the emergence of the dotcom era.”
He adds, “In cyberspace especially, the use of common nouns as domain names and URLs has engendered trademark fights over common words. Such fights were relatively unheard of before e-commerce. For example, it is difficult to imagine two merchant florists fighting over the right to use “flowers” in their trade names. In contrast, fighting over the rights to flowers.com doesnt seem so silly.”
As for Microsoft versus Lindows, Peterson thinks, “The key point of analysis in the Microsoft case is WHEN. I.e., when Microsoft adopted its Windows trademark, was the term window already in use as a generic reference to a graphical interface? Or, did Microsoft arguably cause (or contribute to) the generic reference with its now famous software? In the latter scenario, I think Microsoft, with its inestimable resources, will succeed in proving that it has achieved extensive (probably immeasurable) consumer association with its software product. In other words, whatever incidental association may have developed with a “graphical interface,” it is completely overshadowed by the consumer association with Microsofts product. The difficulty I see is judging the genericness issue in the pre-Microsoft timeframe. The user population before Microsoft seems so relatively small compared to now. It just doesnt seem large enough to have created a generic reference. Whatever the term may have meant to a small group of technophiles in the early 80s-it surely means something different to the rest of the world now.”