Lindows case set for trial

A judge refuses a request to toss out Microsoft's trademark case against the rival software maker, saying a jury should decide whether Microsoft has the right to the word "windows."

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A federal judge in Seattle refused Wednesday a request by software maker Lindows to toss out Microsoft's trademark case against it, paving the way for an April trial.

A jury is now set to decide whether Microsoft has the right to the word "windows" in certain cases, or whether it's a generic term.

San Diego-based Lindows aims to offer an alternative to Microsoft's dominant Windows operating system by developing a version of the open-source Linux OS with a simplified user interface and with tools that will let the average PC user easily install and run a variety of open-source applications. The company initially pledged that its OS would run common Windows software, but it has since changed course, focusing instead on providing open-source applications that can read files created with common Windows counterparts.

"We are pleased that the judge denied Lindows' motion to have our Windows trademark ruled as generic," Microsoft spokesman Jon Murchinson said. "Microsoft has built Windows into one of the most recognized brands in the world over the last 20 years, and we don't think Lindows should be able to free ride on our investment."

The case started in December 2001, when Microsoft sued Lindows and asked a judge to shut down the company's site. The software giant claimed Lindows was using a name that infringed its trademark on its flagship product, Windows. Microsoft contended Lindows was purposefully trying to mislead people by using a name similar to Windows.

However, U.S. District Judge John Coughenour refused Microsoft's request to shutter the Lindows site, questioning whether the company even had the right to the word "windows." Microsoft asked the judge to reconsider, but after reviewing the case further, he again refused to shut down the Lindows site.

Bolstered by those rulings, Lindows in October asked the judge to toss out the case altogether, arguing that Microsoft's trademark is invalid because "windows" is a generic term. Instead, Coughenour said that both sides have presented substantial evidence in their favor, and a jury should decide the matter.

"The test of evaluating whether a term is generic for a class of goods is the primary significance of the term to the relevant public," Coughenour wrote.

Lindows CEO Michael Robertson said he was disappointed by the decision to let the case stand and planned to prepare for trial, which is scheduled to begin April 7 in federal court in Seattle. "We look forward to presenting our case to the jury," Robertson said in a statement.

Last year, Lindows landed a deal with Wal-Mart, which uses Lindows on some of its low-end PCs.

News.com's David Becker contributed to this report.