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A judge has denied Microsoft's request for a preliminary injunction against startup Lindows.com, allowing the startup to keep selling its operating system under the name Lindows.

Lindows is a version of Linux that its maker claims can run Windows programs.

The ruling could also be the first step leading to Microsoft's loss of trademark protection for its Windows operating system's name. However, the judge who ruled against Microsoft's motion called his decision only preliminary and "not a conclusive finding that the trademark is invalid." The suit will now continue with depositions and evidence discovery in the U.S. Federal District Court for the Western District of Washington. Judge John C. Coughenour is presiding.

Lindows.com Pleased

Microsoft had argued that the close similarity in the Lindows and Windows names would confuse customers and dilute its trademark for Windows products. Microsoft also argued that Windows would be "tarnished," since the LindowsOS would likely not run all Windows applications flawlessly upon release.

Lindows.com has said that its operating system will run many, but not all, Windows applications. Microsoft sued Lindows in December, asking the court to bar the company from using the Lindows name and to award damages.

To justify granting a preliminary injunction, a judge must see a likelihood of success at trial and irreparable harm being suffered by the party making the motion. Judge Coughenour concluded that the facts before him did not meet these conditions, and he also turned aside the "tarnishing" argument. He wrote, "the court views Microsoft's tarnishment argument as specious. Any software program is likely to have some defects upon release, and Microsoft has hardly been immune to these problems."

The ruling was "a home run," according to Michael Robertson, founder and chief executive officer of Lindows.com. "We didn't want to fight," he said. "We did our darnedest to try to settle, (but) Microsoft didn't want to settle, so we had to fight."

Robertson previously served as CEO of MP3.com, a company that faced its share of lawsuits from the recording industry. Robertson said that he had expected from the outset that Lindows.com would be sued by Microsoft.

"When your strategy is to compete with Microsoft," he said, "you have to expect everything."

Microsoft did not respond to calls requesting comment for this story.

Trademark Questions

Robertson said he'd "much rather just build my company" than deal with the suit. LindowsOS is not yet available, but it can be acquired in a subscription-based preview edition. The next development version of LindowsOS will support Macromedia's Flash Web animation software and will view and print Microsoft Office documents, he said.

In fact, Lindows.com has asked that the case be dismissed because the company is not yet doing business.

In what may be the most significant part of the ruling, the judge laid the groundwork for revoking Microsoft's trademark on Windows. He declined, however, to address the issue directly so early in the case, citing timing concerns and the large amount of evidence needed to overturn a trademark.

Nevertheless, in his ruling, Coughenour noted that the U.S. Patent and Trademark Office had rejected Microsoft's initial trademark filing numerous times in the early 1990s. In one of those rejections, the USPTO wrote that "the term Windows was in existence, and known, prior to adoption by the applicant. Since the term is a generic designation for the applicant's goods, then, no amount of evidence of de facto secondary meaning can render the term registerable."

The agency also cited multiple filings by rival Borland for trademarks on products that include the word Windows. In 1995, however, the USPTO "approved registration of the Windows trademark with no analysis or explanation for its reversal," the judge wrote.

The judge also wrote that Microsoft has weakened its case by not taking action against companies that used "Win" or "Windows" in their names or in the names of their products.

As long as the case goes on, Lindows.com will continue to challenge Microsoft's trademark on Windows, Lindows' Robertson said. The evidence presented so far, he said, "really calls (the validity of the trademark) into question."

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