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Lindows CEO delivers broadside in MS trademark dispute

Michael Robertson writes

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Recently we published a piece in which we argued that Microsoft was doing no wrong in pressing a trademark case against Lindows.com. And it would probably win anyway, we said. Two people agreed, while 70 or so thought we were talking out of our proverbial.

We invited Michael Robertson, CEO of Lindows.com, to put forward his company's case, and he has kindly given us permission to reprint this counterblast against Microsoft's actions.

Here's the latest news on our legal dispute with Microsoft Corporation. We recently submitted our papers in opposition to Microsoft's request to immediately block us from using our company name Lindows.com as well as our product name LindowsOS. You can read our legal papers here, but I'll do my best to summarize some of the major points. (Note: There are some portions which are not readable because Microsoft claims that certain facts about what they have done in the past should be kept confidential. We intend to ask the Judge to allow us to make those parts public, but until then, this is all we can show you.)

Microsoft is trying to prevent the public from using a descriptive English word "windows" which has had meaning in the computer industry for years prior to Microsoft's use. Companies such as Xerox, DEC, and Apple have used the term for years to describe graphical user interfaces which incorporate graphical elements to display and manage applications. Not until 1983 did Microsoft start using the term 'windows', in connection with an operating system product. For whatever reason, Microsoft waited 7 years before they decided to file a trademark application for "windows" in 1990. US Patent and Trademark Office records show that at least one company lodged a significant protest. The US Patent and Trademark Office subsequently rejected their application because "windows" was a generic word. (Microsoft actually has a pattern of pairing their name with a generic term such a "Microsoft Word". Read more about this in John Dvorak's Declaration.) The US PTO later reversed itself only after Microsoft... (this is something we can't tell you).

A Washington, DC Court has found that over the last decade Microsoft has engaged in unlawful practices and spent billions on marketing and advertising to establish and extend an illegal monopoly. No matter how much money a company spends, they should not be allowed to prevent others from using a descriptive term widely used in the industry; especially if that company has been found guilty of illegal tactics to build and maintain its monopoly. This would be like a furniture company selling a "Super Chair", driving other furniture companies out of business illegally, and then trying to gain exclusive rights to the word "chair" and block all competitors from using it.

Another critical fact that clearly illuminates Microsoft's true motivations is that over the last 10 years Microsoft has never filed a lawsuit similar to the one they filed against Lindows.com in spite of the fact that there are hundreds of products which use the term "windows". Our users helped us identify hundreds of products which use or incorporate the term "windows", These products run on a variety of operating systems (including Linux and Macintosh). Some are actually operating systems themselves. There are commercial products, shareware, freeware, open source, and even hardware products. None of these products are made by Microsoft; none have licensed the term "windows" from Microsoft. But Microsoft has never filed a lawsuit against any of them. Take a trip to any computer store, flip through a mail order catalog or visit any software site on the Internet and you will find many, many products entitled windows something or something windows. And hundreds more products containing "win" or other such variations. Yet Microsoft hasn't brought any action against them. Ask yourself this -- "Why would Microsoft allow these thousands of products to use what they claim to be their trademark with no protest whatsoever, but decide to sue Lindows.com?" The fact that Microsoft is targeting only Lindows.com demonstrates their real motivation is to stop a potential competitor and NOT that they believe there's confusion concerning our product name.

While Microsoft alleges people will be confused when they asked the judge to shut down Lindows.com, they offered no evidence whatsoever that anyone was actually confused between Microsoft's programs and LindowsOS. In fact, we hired an independent marketing company to conduct a survey, asking over 14,000 likely buyers to participate. The results revealed that not even a SINGLE respondent was confused. The survey was supervised by an expert from San Diego State University. Go here to read about the survey results. Microsoft offered no expert testimony (apart from Microsoft employees). They did no surveys. If they had done a survey, they would have found out exactly what our research revealed; that there is NO confusion whatsoever among potential buyers.

We want to focus on building our product and not fighting in court, but we also think it's important to stand up to the bully on the first playground encounter otherwise he'll chase you home every day. We have offered a compromise to Microsoft whereby we would continue to use our company name Lindows.com since that bears no resemblance whatsoever to Microsoft, but we would not use LindowsOS as our product name. This offer was not accepted.

The next step in the lawsuit is a court hearing February 27th where the judge will hear our oral arguments and then make his ruling either at that time or a later date. We'll keep you posted on the latest news and thanks for your support! ®

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