David Lindows Strikes Back against Goliath Microsoft

by Kristin Palitza

Lindows decided to oppose the lawsuit after Microsoft declined to accept an offer made by Lindows to settle the conflict. "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," said Lindows CEO Michael Robertson. Lindows is now preparing its defense and argues that 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 of the term. Other technology companies such as Xerox, Digital Equipment (now part of Compaq), and AppleX have used the term for years to describe graphical user interfaces, Robertson said. Not until 1983 did Microsoft start using the term "windows" in connection with an operating system product, and waited seven years to file a trademark application for the "windows" name, which the U.S. Patent and Trademark Office rejected because "windows" is a generic word.

"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," Robertson said in the company's opposition papers, referring to Microsoft's antitrust trial. "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," he argued.

Lindows.com also points out that there are hundreds of software products on the market that incorporate the term "windows" that run on a variety of systems, including Linux and Macintosh, and that there are hundreds more products that contain "win" in their name. Microsoft did not file a lawsuit against any of the companies providing those products. "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 the product name," Lindows stated.

To find proof for this thesis, Lindows has surveyed 14,000 likely LindowsOS buyers to find out if the Lindows name is subject to confusion with the Microsoft mark. The study was supervised by an expert from San Diego State University. Only 750 people responded, but the results showed that not a single respondent was confused by the Lindows name, Lindows said. Microsoft did not offer any expert testimony, apart from its own employees, so far. The giant has provided the court with "no survey, marketing data, or admissible expert opinion supporting its claims of dilution and likelihood of confusion," Lindows said in its filings.

Robertson denied that the LindowsOS is a copycat of Microsoft's operating systems--one of Microsoft's claims. "LindowsOS results from a unique engineering effort comprised of more than 10 million lines of code--none of which is adopted from Microsoft's products," he said. "Prohibiting Lindows from using its name at this critical pre-launch juncture would disrupt the only income stream this company will have, and will seriously harm Lindows' ability to obtain financing." Lindows also says it provides different logos, slogans, and distribution channels than Microsoft, and its products are labeled "not endorsed by or affiliated with Microsoft."

A judge will hear oral arguments on February 27 in the U.S. District Court for the Western District of Washington and might rule either that day or at a later date.

San Diego, California-based Lindows has just released a Sneak Preview of LindowsOS to a select group of people. The Sneak Preview is not a fully completed product but showcases many features such as a "friendly" install alongside an existing Microsoft Windows operating system, a streamlined installation process that requires no computer knowledge, and the ability to run popular Windows-based programs. Version 1.0, Lindows' first product, is expected to hit the market in the next couple of months. LindowsOS will be the first commercially available OS based on Linux open source technology that can run Windows-compatible applications.