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Dump Lindows name or we'll take all your money, says MS

Another day, another injunction for Robertson...

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The smart choice: opportunity from uncertainty

Lindows.com CEO Michael Robertson steps into the hotel lobby, shakes hands and then picks up the latest Microsoft death threat from his pigeonhole. Microsoft legal affairs has pursued him across Europe this week, setting off explosions in the Netherlands, Sweden, France and Finland, but this one's fairly minor - a response to his letter to Steve Ballmer, Microsoft's pitch boiling down to more or less, 'dump the Lindows name now and we'll let you off, persist and we'll bust you, all your distributors and take all your money.'

The week's previous high was being handed the brown envelope when he got off the plane in Stockholm, but you get the impression they're currently coming in faster than Robertson can keep track of. His European tour was triggered by Microsoft moving against LindowsOS resellers in the Netherlands, but he says he didn't know anything about the Swedish action until he was served with the injunction, he's got a two page fax in French which appears to indicate he's being busted in France, but he's not entirely sure, and there's another one he can't remember right now. Oh yeah, Finland...

Robertson's perspective however is not that of mere mortals. In his mp3.com glory days he had something in the region of 50 actions pending and judgments against the company adding up to "numbers that broke calculators." So this is kid's stuff, and he coolly analyses what he thinks Microsoft is doing. The latest fax is from one Horacio E Guttierez, Associate General Counsel for MS EMEA, based in the La Defense Barad-Dur, but the Swedish action used the Redmond address, and any suggestion Redmond wasn't driving all this would be absurd.

"Microsoft's actions are in no way designed to impede competition," says the letter. "There are many competitive operating system distributions widely available in Europe that do not willfully infringe Microsoft's intellectual property rights. As long as Lindows.com stops engaging in infringing behavior we look forward to competing with your products." Oh, really...?

Robertson is of the view that Microsoft and its like have lockers of patents and trademarks they will unleash when threatened by competition, but that the stability of the system is maintained by members of the 'club' each having a counterstrike capability, resulting in a cold war balance of power between the major players. This doesn't work for the little guys without the big IP portfolios, if they're a threat they get hit, he's getting hit, QED. So Red Hat and SuSE not currently getting hit means they are not perceived as competition on the home turf, the desktop, yet.

Microsoft has had two years when it could have moved against Lindows in Europe, but it's only just starting, meaning in Robertson's view that he has only recently become dangerous there. And he proposes to become more so - he pitches the next generation of low-cost Lindows notebook as selling for $100 less than equivalent Microsoft machine in the same stores so, yes, that could be a threat. If Lindows notebooks can make it into the stores.

Here's the deal from Tour B, La Defense. If he knocks it off now:

"Microsoft will voluntarily dismiss all pending actions in Europe against Lindows.com and its distributors and will refrain from taking any further legal actions to enforce its trademark in Europe if you discontinue use of 'Lindows' in favor of a new, non-infringing name. In addition, if Lindows.com agrees promptly to such change, Microsoft will not seek any monetary sanctions to which it may be entitled against Lindows.com, including recovery of Microsoft's legal expenses.

"The decision is yours. If Lindows.com is willing to respect Microsoft's rights in the Windows brand in Europe, Microsoft will not initiate or pursue any action against Lindows.com or its distributors in Europe relating to the Windows trademark. If, however, Lindows.com intends to continue to use an imitation of the Windows mark that is likely to confuse consumers into believing that your company's operating system products are connected with Windows operating systems products, Microsoft has no choice but to enforce its trademark rights in the Netherlands, Sweden and other countries."

Most companies receiving this would fold, says Robertson. The board would look at the exposure, look at the 'get out of this for free' carrot, and if the CEO still wanted to fight, he'd be an ex-CEO. Microsoft is however using this tried and tested script against the wrong kind of company. Robertson is a man with a mission, and that most dangerous of competitors, the one who doesn't give a shit.

If by the time Longhorn hits Microsoft does not have serious competition on the desktop, he reasons, then we will all be DRMed up to the eyeballs. And right now it seems to him that Lindows is the only game in town when it comes to competition in the consumer market. He has enough money personally, and enough to fight the lawsuits. So the financial threats don't overawe him the way they're supposed to, and it's important to him that he stand his ground.

There are two things in his history that that maybe make DRM and fighting bigger issues to him than you might think. In his view mp3.com was actually offering the music industry a way out, a mechanism for coming to terms with digital music. The ungrateful music industry however sued the crap out of him and is now reaping the whirlwind. mp3.com was characterised as a pirate's cove and hit with statutory damages for infringements. These were so huge that it was just plain impossible to post the bond that would have been needed to pursue an appeal. The system, says Robertson, acted in favour of vested interests by denying mp3.com the right of appeal, and he couldn't fight.

But here it comes again, in the shape of Windows as a vehicle for DRM. So, this time...? ®

Related stories

Microsoft takes Lindows fight to Sweden
MS plays hardball with Dutch Lindows resellers
MS issues take-down to Lindows, redefines 'guilt'
Lindows.com CEO pickets Bill Gates speech
Apple v MS lawsuit to walk again in Lindows.com trial

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