From the New York Times today. Link requires subscription so I've also posted the text.
http://www.nytimes.com/2002/12/30/te...t&position=top
December 30, 2002
Glass Panes and Software: Windows Name Is Challenged
By STEVE LOHR
There is no question that Microsoft Windows, the name of the dominant personal computer operating system, is one of the leading brands in the world. Today, Windows is the face of computing for nearly 400 million people worldwide — the software that determines the look and basic operations of more than 90 percent of all PC's.
But success, money and monopoly, it seems, do not put even so familiar a name as Microsoft Windows beyond challenge. An upstart company, Lindows.com, is trying to persuade the Federal District Court in Seattle to invalidate Microsoft's trademark on Windows.
At issue is the level of legal protection that should, or should not, be accorded to an ordinary word that Microsoft adopted as its own: windows.
The litigation so far — a mounting pile of evidence and briefs — provides a detailed narrative of the origins and rise of a mega-brand, and a primer on trademark law. And an order by Judge John C. Coughenour, refusing Microsoft's plea for a temporary injunction against Lindows.com, suggests that Microsoft has a fight on its hands against a feisty start-up with fewer than 50 employees.
In January, Judge Coughenour is expected to decide on Lindows.com's motion for a summary judgment — a ruling from the bench — that the Windows trademark should be revoked. But that is a long shot. Both sides are preparing for a trial that is scheduled to begin in Seattle on April 7, when a jury is expected to begin weighing whether Lindows is an illegal copycat brand and whether Microsoft's trademark on Windows should be taken away.
Lindows.com is defending a broad principle, its lawyer says. "No company, no matter how powerful, no matter how much money it has spent, should be able to gain a commercial monopoly on words in the English language," said the lawyer, Daniel Harris, a partner at Clifford Chance.
Microsoft, understandably, says a different principle is at stake. According to its court filings, the company has spent $1.2 billion on marketing and promoting Windows since the first version was announced in 1983 and shipped in 1985. "Our request in this case is simply that Lindows not free-ride on the investments we have made in building Windows into one of the most recognizable brands in the world over the last 20 years," said Jon Murchinson, a spokesman for Microsoft.
Microsoft started the legal spat. It filed a complaint against Lindows .com last December claiming trademark infringement, trademark dilution and unfair competition. That was five months after Lindows.com was founded and before it had a product on the market.
Lindows.com's stated intention is to market desktop operating software based on Linux, an operating system, distributed free, whose basic code is written and debugged by a volunteer community of programmers. To date, Linux has done well as an operating system for the server computers that run corporate networks and the Internet. But it has made scant progress in loosening Microsoft's grip on the market for PC operating systems, where Microsoft enjoys a monopoly.
Microsoft filed its trademark suit against Lindows.com, saying it was using a copycat name, and then asked the court for a preliminary injunction to halt quickly what it deemed an illegal practice by an emerging rival.
Nonsense, Lindows.com replied. "Windows" is a generic term, it said, first used more than two decades ago for software systems that could display programs or data in rectangular windows on PC screens. Lindows .com submitted declarations from expert witnesses and trade press articles from the 1980's, when several software companies were offering desktop environments. They spoke of the "window wars" of those years and had headlines like "Microsoft Does Windows."
In his order last March, Judge Coughenour denied Microsoft's request for a preliminary injunction in a 29-page order indicating that the little-known defendant had scored some points.
"Although Lindows.com certainly made a conscious decision to play with fire by choosing a product and company name that differs by only one letter from the world's leading computer software program," the judge wrote, "one could just as easily conclude that in 1983 Microsoft made an equally risky decision to name its product after a term commonly used in the trade to indicate the windowing capability of a G.U.I." G.U.I. stands for graphical user interface, the system that lets people navigate by using on-screen icons and a mouse to point and click.
Lindows.com was emboldened. It sued to invalidate Microsoft's trademark on Windows in October and asked for a summary judgment. "After Microsoft tried to get the court to shut us down and failed, we're fighting back," said Michael Robertson, the founder and chief executive of Lindows.com. "They lobbed a grenade into our office, and we just lobbed it back."
Mr. Robertson, who is 35, is well aware of the commercial value of association with a familiar name, and he is no stranger to lawsuits. He was the chief executive and a founder of MP3.com, a music-sharing service on the Web named for the popular software format for sharing audio files. MP3.com was sued by major record companies, including Universal, Warner, EMI and Sony, for copyright infringement.
Mr. Robertson sold MP3.com to Vivendi for $372 million in cash and stock in May 2001. The MP3.com experience, he says, was good training for taking on Microsoft.
Microsoft sees a pattern in Mr. Robertson's past, regarding him as a serial opportunist who is trying to exploit the intellectual property rights of others once again.
Microsoft observes in a filing that the courts have typically slapped down copycat brands selected by newcomers: Prozac won legal protection from Herbrozac in antidepressant drugs, Apple prevailed over Pineapple in computers, and Huggies successfully challenged Dougies in diapers.
The Lindows.com side replies that Prozac, Apple and Huggies were names made up by Eli Lilly, Apple Computer and Kimberly-Clark. Trademark law affords the greatest protection to words that are fanciful or arbitrary, like Apple. Next in line for legal protection are names that are suggestive of what a product does, like Huggies. Next comes a descriptive term, which describes an attribute of a product, and last come names that are generic, or widely understood to mean a category of products. Generic terms cannot be trademarked.
The legal fault line in this case lies between descriptive and generic. Microsoft's argument, in essence, is that Windows is a term for the window feature of the company's product that, by dint of Microsoft's huge investment, has acquired a powerful "secondary meaning." In a court filing last month, Microsoft submitted as evidence a consumer survey that found that 83 percent of people who used PC's at work and 73 percent of PC users at home regarded Windows as a Microsoft trademark and not a generic name.
In written testimony last month, Bill Gates, Microsoft's chairman, asserted that while Windows enabled the display of on-screen windows, its ambitions were much larger. Mr. Gates said that unlike most competing products in the early 1980's, which were simple window systems, Windows is a layer of software between an operating system and an application like a word processor. As such, he added, the Windows layer has allowed outside software developers to write all kinds of applications that run on Windows.
MS Windows Trademark Challenged! 
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