Microsoft’s appeal denied

The United States Court of Appeals for the Ninth Circuit today denied Microsoft’s petition for interlocutory appeal in its ongoing trademark litigation against Lindows. The case has now been remanded back to Judge Coughenour of the United States District Court in Seattle for trial.

“We’re looking forward to getting this trial back on the fast track and presenting our piles of evidence – videos, magazines, internal Microsoft documents – which clearly shows the generic use of ‘windows’ before Microsoft commandeered the word,” said Michael Robertson, chief executive officer of Lindows.

“This outright denial of Microsoft’s appeal confirms that the trial will focus on how consumers and the software industry used the term ‘windows’ in the 1980s, before Microsoft dominated the landscape,” added Robertson.

The case began in December 2001 when Microsoft filed a trademark infringement suit and asked the Court to block Lindows from using its company name and its product name, LindowsOS. Since that time, two successive rulings denied Microsoft’s requests for an injunction. A trial date was scheduled for March 1, 2004, but was postponed due to the appeal.

The denial of Microsoft’s appeal sets the trial on a timetable to take place in the second half of 2004 in Seattle, Washington with Judge Coughenour presiding.

The appeal stems from a motion Microsoft filed earlier this year on the eve of trial. Microsoft argued that the jury should only consider the meaning of the term “windows” as it is understood by the public today.

On February 10th, Judge Coughenour ruled that the jury will be instructed “to consider whether the Windows mark was generic during the period before Microsoft Windows 1.0 entered the marketplace in November 1985.” At the same time, the Court ruled that it would not instruct the jury to consider the current meaning if the jury finds “windows” was a generic term prior to November 1985.

While the Court found in favour of Lindows on this issue, it also struck the trial date and allowed Microsoft to appeal the ruling to the United States Court of Appeals for the Ninth Circuit. After extensive briefing by both sides, the Court of Appeals has now dismissed Microsoft’s appeal and left Judge Coughenour’s ruling intact.

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