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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.

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