Microsoft Trademark Battle—How Would Resellers Vote?

As a result of the trademark battle between Lindows Inc. and Microsoft Corp. concerning whether Lindows conflicts with the Windows trademark, Microsoft's very Windows trademark has been called into question. But if U.S. resellers were judging the Windows trademark controversy, would Microsoft come out on top? Not necessarily.

Microsoft has been battling Lindows in both U.S. and European courts over alleged similarities between the Windows and Lindows names. So far, the software giant has enjoyed some legal success against Lindows in the Netherlands, Sweden and Finland. Most recently though, Lindows and its resellers won a case in the Netherlands, and, for the most part, the San Diego-based Linux distributor has been winning in American courts.

In the most recent Windows/Lindows ruling, the court in Amsterdam took a turn toward Lindows, finding that the vendor's current use of the Lindows name does not constitute a violation of Microsoft's Windows trademark. In response to an earlier ruling by the same court in favor of Microsoft, issued in April, Lindows had already made some big changes.

Although keeping Lindows as its company name, Lindows switched the name of its operating system and Web site to "Linspire." The vendor started using the name 'Lindows' only in small print on its documentation and Web site. The company is also clearly spelling out that it is not affiliated with Microsoft.

"That's really a shame. As I see it, 'Lindows' is a different name than 'Windows.' If you've ever learned the alphabet, you know that 'L' is a different letter than 'W,'" reacted Zachary Slavin, who heads up The Slavin Group, an IT security and networking services firm, in Manhattan, N.Y.

U.S. courts have been less swayed by Microsoft than those in Europe. In Seattle, U.S. District Judge John Coughenour first issued a ruling that a jury must decide whether "windows" had been a generic term before it was trademarked by Microsoft. Then, at an expedited hearing in March that was requested by Lindows, Coughenour proposed a deal in which Microsoft could have proceeded with an appeal of this earlier ruling, in exchange for ceasing its efforts against Lindows in foreign courts.

During a series of interviews, some resellers questioned whether Microsoft is even entitled to own the "Windows" trademark. Some maintained that "Windows" is different from trademarks such as Xerox and Q-Tips, which started out as brand names before settling into generic use.

"I have a little box on the screen here, and another little box on the screen over there. Gee. Let's see now. What else am I going to call this, other than 'windows'?" quipped Tom Osbeck of ORC.

"'Q-Tips' began as a brand name, but it then became a generic term for cotton swabs. 'Vaseline' began as a brand name, but it then became a generic term for petroleum jelly," Slavin said.

Essentially, Slavin believes that some uses of the word "windows" by other vendors could constitute trademark violations, whereas other uses would not.

"Microsoft was really the first to put a GUI on a DOS-based product. My gut reaction is that Microsoft should have the right to own the Windows trademark for the brand names of its operating systems—Windows 3.1, Windows XP, etc.—although Microsoft certainly owns enough other things in the world, too," Slavin said.

"But if others want to use the word 'windows' in their documentation, there shouldn't be anything wrong with that. If Star Office, for example, wants to talk about something pertaining to their own GUI, they should be allowed to talk about 'StarOffice windows.'"

If a real jury in the United States ever does ban Microsoft from using the 'Windows' trademark, will channel partners be impacted? Resellers expressed different points of view on this subject.

"A decision like this might be confusing for customers. Resellers might have to start saying something like, 'CVS-brand Q-Tips' instead of just 'Q-Tips,'" Slavin said.

Hector J. Llorens, a reseller from Long Island City, N.Y., disagreed. "I don't think there'll be much impact on resellers. Almost all PCs come with [Microsoft] Windows preloaded on them anyway," he said.

Llorens also suggested that Microsoft's position in court might be weaker if the Linux industry were less fragmented.

"Unlike Microsoft, 'Linux' is not one big company. 'Linux' is a bunch of smaller companies. It's Lindows—not 'Linux'—that's in court against Microsoft," Llorens said.