hope this isn�t too off topic...
regards
Dave.
Michael's Minute: Microsoft Corp. vs. Lindows.com Inc. - Get out your
slingshot!
Our trial with Microsoft is fast approaching. Many of you have expressed
interest in following it, so here are some answers to questions about the
upcoming trial:
Q: When and where is the trial?
A: The jury trial is expected to begin on Monday, December 1, 2003 in
Seattle, Washington. The Honorable John C. Coughenour, United States
District Court Judge, will preside over the case in Court 611, 6th Floor,
1010 Fifth Avenue, in Seattle. After selecting the jury first thing in the
morning, we expect opening statements will begin mid-morning or early
afternoon. The case number is 2:01-cv-02115.
Q: What is this case about?
A: Microsoft is claiming that it is the only company that can use the generic
word "windows" to identify a product or company. Microsoft claims that
LindowsOS and Lindows.com are confusing people into thinking that they are
owned or endorsed by Microsoft.
Q: I thought this case was concluded sometime ago and Lindows.com was allowed
to keep the name?
A: Days before Christmas in 2001, when Microsoft filed its Complaint against
Lindows.com, it also filed papers seeking a preliminary ruling from the Court
to shut down the Lindows.com website, and prevent Lindows.com from using its
LindowsOS and Lindows.com names until a jury decides the case. After both
sides filed papers and the Court held a public hearing, the Court denied
Microsoft's motion in a 30-page Order. Microsoft then asked the Court to
reconsider its rejection of Microsoft's motion and, after both sides filed
more papers, the Court again refused Microsoft's request. Now a jury trial
will definitively decide this issue.
Q: Wasn't this case supposed to go to trial earlier?
A: Yes. The case was originally scheduled for trial in April. In February,
the Court ordered Microsoft to produce hundreds of thousands of pages of
documents that Microsoft had refused to produce months earlier. The trial
delay afforded Lindows.com the opportunity to review those documents in
detail.
Q: What did you find in those hundreds of thousands of pages?
A: Lots. Although many are over a decade old, most have been marked highly
confidential so we can't talk about it...yet. We expect the public will
learn the whole story during the course of the trial.
Q: Doesn't Microsoft have a legal trademark for the word "windows?"
A: They do have a trademark, but they secured that trademark under highly
questionable circumstances which will be revealed at trial. Microsoft's
trademark has never been tested in Court before. This is the first time
Microsoft has sued a company in Federal Court just for trademark
infringement, and Lindows.com believes the trademark will not hold up once
the complete story is revealed.
Q: What is Lindows.com's position?
A: The word "windows" is a generic term that has been used widely throughout
the industry for years. Countless products and companies have used the term
"windows" as part of their name. Microsoft waited 7 years before filing for
a trademark and, in part because so many other software companies used the
term to identify software that used on-screen windows, the Trademark Office
found the term to be generic and rejected Microsoft's application on two
separate occasions. In 1995, after years of trying (this is the part we
can't talk about yet), Microsoft finally got its trademark despite the
existence of dozens of others uses of the term at the time. Lindows.com
believes the evidence will show that Microsoft has no legitimate right to a
trademark for the word "windows" and that consumers are not confused between
Microsoft Windows XP and LindowsOS.
Q: Why is this important to the computer industry?
A: No company, no matter how large, no matter how powerful, should be able to
take a plain word used by many and block competitors from using it for the
same purpose. Microsoft has other products such as Microsoft Word, Microsoft
Project, and Microsoft Office which are named after generic descriptors just
like Microsoft Windows. This would set a dangerous precedent of rich
companies being able to buy words and take them out of the lexicon of the
industry to block competitors. Imagine American Airlines declaring that
their position as the largest airline company gave them the sole right to the
word "airline" and they forced all of their competitors to stop using that
word. That is the same kind of tactic that Microsoft is attempting with the
generic word "windows."
Q: What happens if Microsoft prevails?
A: Lindows.com will be required to change its company and product names.
None of the issues in this trial involve the software code Lindows.com
sells, and Microsoft is no longer seeking any money damages for lost sales or
alleged injuries to its trademark's value.
Q: What happens if Lindows.com prevails?
A: Because the Court denied Microsoft's preliminary motions to prevent
Lindows.com from using its names, Lindows.com will continue to sell their
LindowsOS product line and be able to keep their company name as is. Since
this case began, Microsoft has tried to crack down on other companies and
individuals that use the word windows, or portions of it. To address this
situation, Lindows.com is also seeking an Order, depending on the jury's
verdict, that will invalidate Microsoft's trademark. If granted, Microsoft
would no longer be able to claim exclusive rights to the word "windows" to
identify software products. No matter what happens at trial, Microsoft will
continue to use "windows" in its product names. If its trademark is invalid,
Microsoft just won't be able to bully smaller companies with trademark
litigation the way it did with Lindows.com.
Q: What evidence will be presented?
A: Evidence presented will span a 20-year time period and include magazine
and newspaper articles, dictionaries, surveys, advertisements, and previously
never disclosed internal Microsoft documents dating back to the origins of
Microsoft Windows 1.0's development. Lindows.com also expect to present a
great deal of evidence revealing just how Microsoft obtained a trademark for
a word that the Trademark Office itself found to be generic after a thorough
evaluation.
Q: What witnesses will be testifying?
A: Lindows.com has subpoenaed Microsoft Chairman Bill Gates and he will
testify, at least, as a hostile witness for Lindows.com. Lindows.com has
also issued trial subpoenas for several other Microsoft employees, including
President Steve Ballmer who is expected to testify as a hostile witness as
well. Michael Robertson will also testify as a witness at trial. In
addition, many industry luminaries are expected to testify, including some of
the original members of the Microsoft Windows 1.0 development team, former
InfoWorld editor and long-time PC Magazine columnist John C. Dvorak, and
several others. Lindows.com has also subpoenaed William Ferron, the
Microsoft lawyer responsible for obtaining and trying to enforce the windows
trademark. Microsoft is expected to call several of its own current and
former employees, as well as several paid "experts."
Q: Is this an open courtroom? Can I attend?
A: Yes. Although the decision is ultimately up to Judge Coughenour, we
anticipate that the courtroom will be open to the public and seating is
first-come, first-served. Trial days are expected to run Monday through
Friday, beginning at 9:30 am. Press who would like to attend can register at
www.lindows.com/attend; those unable to be present can also sign up for email
updates at the same website.
Q: How can I stay informed of the developments?
A: Several national, local and trade news agencies have indicated that they
will be in daily attendance. You can also sign up for email updates at
www.lindows.com/attend.
Q: Will this trial be broadcast?
A: No cameras are allowed in the courtroom.
Q: Who will be representing Microsoft?
A: Microsoft has assembled a "dream team" of prominent local and national
trial lawyers. Although it is still unknown who will be lead trial counsel,
Microsoft has retained Karl Quackenbush, former Head of Litigation at
Seattle's Preston Gates and Ellis, along with his team. Mr. Quackenbush has
represented Microsoft for years, and has served as lead counsel in
Microsoft's battles with Apple Computer and most recently with Sun
Microsystems. Microsoft has also retained Dan Webb, Head of Litigation at
Chicago-based Winston & Strawn, along with his team. Mr. Webb, former U.S.
Attorney in Chicago and former Iran-Contra Special Prosecutor, most recently
represented Microsoft in the antitrust trial prosecuted by various State
Attorneys General. Mr. Webb is widely regarded as one of the top trial
lawyers in the country. Microsoft has also retained William O. Ferron, Jr.,
Managing Partner of Seattle's Seed Intellectual Property Group, along with
his team. In addition to being selected as one of Seattle's 2003
"SuperLawyers" by Law & Politics Magazine, Mr. Ferron has been representing
Microsoft in trademark matters for 20 years. Microsoft will also be
represented by Linda Norman, its in-house litigation counsel, and her team.
Q: Who will be representing Lindows.com?
A: Daniel Harris of Clifford Chance, and Karin Swope, from the boutique
Seattle law firm Yarmuth, Wilsdon & Calfo.
Q: Where can I read more background on this case?
A: Documents can be viewed online at http://lindows.com/mslawsuit.
-- Michael
