Microsoft's Appeal Denied

Windows Trademark to Be on Trial

May 24, 2004, 01:00 ET from Lindows, Inc.

    SAN DIEGO, May 24 /PRNewswire/ -- The United States Court of Appeals for
 the Ninth Circuit denied Microsoft's (Nasdaq:   MSFT) petition for interlocutory
 appeal in its ongoing trademark litigation against Lindows, Inc.  The case has
 now been remanded back to the Honorable 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, Inc.  "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."
     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 the Honorable
 Judge Coughenour presiding.  The trial is expected to last approximately two
 weeks with each side having one week to present its case.  Witnesses already
 designated to testify include Bill Gates, Steve Ballmer and Michael Robertson.
     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 will not instruct the jury to consider the current meaning
 if the jury finds "windows" was a generic term prior to November 1985.  The
 Court's February 10, 2004, Order can be found at
     While the Court found in favor of Lindows on this critical 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 entirely intact.
     The case began in December 2001 when Microsoft filed a trademark
 infringement suit and asked the Court to block Lindows, Inc. from using its
 company name and its product name, LindowsOS.  Since that time, two successive
 rulings denied Microsoft's requests for an injunction and raised serious
 questions about the validity of the "windows" trademark.  A trial date was
 scheduled for March 1, 2004, but was postponed due to the appeal.  To read
 past Court documents, visit
     The Ninth Circuit's ruling can be found at  To be
 informed of the trial date once it has been set and to keep up to date on
 other developments, please visit
      For more information,
      Ellie Sanchez
      Lindows, Inc.
      858-587-6700 ext. 263
     About Linspire
     Linspire is an affordable Linux-based operating system, designed
 specifically for desktop and laptop computers in homes, schools and
 businesses.  Linspire uses proprietary CNR technology that allows the
 installation, updating and management of hundreds of software programs usually
 with just one click.  The Linspire operating system is also offered in Spanish
 ( and Japanese (  Those
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SOURCE Lindows, Inc.