The battle between Lindows.com Inc. and Microsoft Corp. over the Lindows trademark took an interesting turn today when U.S. District Judge John Coughenour in Seattle proposed a deal in which Microsoft can proceed with an appeal of his earlier ruling that a jury must decide whether “windows” had been a generic term before it was trademarked and Microsoft would cease its efforts to get foreign courts to stop the sales of Lindows until the U.S. case is decided.
Coughenour proposed this deal in an expedited hearing that Lindows.com had requested. Lindows asked for this motion to be heard as quickly as possible because an adverse preliminary judgment in Holland has forced the company to stop selling its operating system in the Netherlands, Belgium and Luxembourg (the Benelux countries) and Microsoft is also seeking to block Lindows operations under the Lindows name in Canada, Finland, France and Sweden.
In the Lindows trademark battles, Lindows.com has done well in the United States, but the company has fared poorly beyond American borders. Lindows lawyers claim that Microsoft should be prevented from continuing to litigate against the company in foreign courts for two major reasons: The foreign decisions are an attempt by Microsoft to evade the U.S. courts jurisdiction and Microsoft is putting undue hardship on San Diego-based Lindows by suing the company on the same trademark violation in multiple foreign jurisdictions.
In yesterdays hearing, Lindows argued that since it is impossible to keep Benelux citizens from visiting its Web site, if the U.S. court allows the Dutch court to fine Lindows a daily fine of 100,000 euro (approximately $123,500), Lindows would be forced to shut down its site, perhaps go out of business and be forced to change its name regardless of how the U.S. court eventually rules on its trademark dispute with Microsoft.
According to Michael Robertson, Lindows.coms CEO, in an eWEEK.com interview, “The judge expressed displeasure that he had granted the right to an interim appeal because he was content with the status quo. But Microsoft took advantage of that to file clandestine actions in other jurisdictions trying to shut us down. When the judge mentioned that it might make sense to suspend international actions to keep the appeal possible in the U.S., Microsoft said they did not like that option.”
Microsoft spokeswoman Stacy Drake McCredy said of Lindows effort: “This is a baseless effort by Lindows to avoid the jurisdiction of international courts where they are violating local trademark laws. If Lindows does not believe it can reasonably comply with a preliminary injunction issued in a given country, then it is most appropriate for them to raise the issue with the court that rendered the injunction.”
If Microsoft does not agree to this deal, which based on Credys statement seems unlikely, the judge is expected to rule shortly.
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