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:
and where is the trial?
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.
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.
thought this case was concluded sometime ago and Lindows.com was
allowed to keep the name?
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
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?"
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
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?
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."
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
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.
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.
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
this an open courtroom? Can I attend?
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.
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.
this trial be broadcast?
cameras are allowed in the courtroom.
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.
will be representing Lindows.com?
A: Daniel Harris of Clifford Chance, and Karin Swope, from the boutique
Seattle law firm Yarmuth, Wilsdon & Calfo.
can I read more background on this case?
A: Documents can be viewed online at http://lindows.com/mslawsuit.
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