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Judge denies Microsoft motion in Lindows case

A judge has denied Microsoft's request for a preliminary injunction against Lindows.com, thus allowing the start-up to continue selling its operating system under the name Lindows, a version of Linux that its maker claims can run Windows programs.

The ruling could be the first step leading to Microsoft's loss of trademark protection for its Windows operating system's name, though Judge John C. Coughenour said in his ruling that Friday's decision was preliminary and "not a conclusive finding that the trademark is invalid." The suit will now continue with depositions and evidence discovery.

Microsoft had argued that the close similarity in the Lindows and Windows names would confuse customers and dilute its trademark for Windows products. Microsoft also argued that Windows would be "tarnished" since the LindowsOS was unlikely to run all Windows applications flawlessly upon release. Lindows.com has said that its operating system will run many, but not all, Windows applications. Microsoft sued Lindows in December, asking the court to bar the company from using the Lindows name and for damages.

For a preliminary injunction to be granted, a judge must see a likelihood of success at trial and irreparable harm being done to the party making the motion. Judge Coughenour did not find these conditions met, he wrote, and also turned aside the "tarnishing" argument, saying "the court views Microsoft's tarnishment argument as specious. Any software program is likely to have some defects upon release, and Microsoft has hardly been immune to these problems."

The ruling was "a home run", according to Michael Robertson, founder and chief executive officer of Lindows.com. "We didn't want to fight," he said. "We did our darndest to try to settle, Microsoft didn't want to settle, so we had to fight."

Robertson previously served as chief executive officer of MP3.com, a company that faced its share of lawsuits from the recording industry.

Robertson said he was prepared from the outset of Lindows.com to be sued by Microsoft.

"When your strategy is to compete with Microsoft," he said, "you have to expect everything."

Despite his time being occupied with the suit, Robertson said he'd "much rather just build my company." LindowsOS is not yet generally available, but can be acquired in a subscription-based preview edition. The next development version of LindowsOS will add support for Macromedia's Flash Web animation software, the ability to view and print Microsoft Office documents and more, he said.

Microsoft did not respond to calls requesting comment for this story.

In what may be the more significant part of the ruling, the judge laid the groundwork for revoking Microsoft's trademark on Windows. However, he declined to address the issue directly so early in the case, citing timing concerns and the large amount of evidence needed to overturn a trademark.

In his ruling, Coughenour noted that the US Patent and Trademark Office (USPTO) had rejected Microsoft's initial trademark filing numerous times in the early 1990s. In one of those rejections, the USPTO wrote that "the term Windows was in existence, and known, prior to adoption by the applicant. Since the term is a generic designation for the applicant's goods, then, no amount of evidence of de facto secondary meaning can render the term registerable."

The USPTO also cited multiple filings by former Microsoft rival Borland Software for trademarks on products which included the word Windows.

However, in 1995, the USPTO reversed field and "approved registration of the Windows trademark with no analysis or explanation for its reversal," the judge wrote.

The judge also wrote that Microsoft had weakened its case by not taking action against companies that used "Win" or "Windows" in their names or the names of their products.

As long as the case goes on, Lindows.com will continue to challenge Microsoft's trademark on Windows, according to Lindows' Robertson. The evidence presented so far, he said, "really calls [the validity of the trademark] into question."

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