Microsoft fights lawsuits on trademark and anti-trust

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19 March 2002 Microsoft lawyers were in court on both east and west coasts of America yesterday, taking on a Linux operating system start-up in Seattle, Washington State, as well as fending off growing opposition to its proposed settlement with the US Department of Justice (DoJ) on the east coast in Washington DC.

In Seattle, US Judge John Coughenour dismissed Microsoft’s request for a preliminary injunction barring Linux start-up from calling its product LindowsOS. Judge Coughenour’s preliminary ruling carries no immediate legal implications, but if upheld, it could enable other companies to use the Windows name on their own software products, lawyers say.

According to Judge Coughenour, “has presented sufficient evidence to rebut the presumption of validity of the Windows mark,” due in part to the fact that that the term has a generic usage beyond Microsoft’s flagship operating system.

A similar ruling in the 1990s enabled competitors of semiconductor giant Intel to call their microprocessors by the same names, because the judge ruled that the numbers 286, 386 and 486 could not be trademarked. Intel adopted the brand name Pentium in response.

Microsoft filed its lawsuit in December 2001 and is expected to vigorously appeal against this ruling. However, Daniel Harris, a lawyer for, says his client will probably file a motion to dismiss the suit.

In a separate development, the nine rebel states that have rejected the DoJ’s proposed anti-trust settlement with Microsoft yesterday urged a federal judge to impose harsher sanctions against the software giant.

Yesterday was the first day of hearings into potential remedies for Microsoft’s breaking of US anti-trust law. The nine states argued that Microsoft continues to use its strong market position to stifle competition and that the remedies proposed by the DoJ are simply too weak.

The dissenting states argue that Microsoft withheld technical data from RealNetworks, which meant that its media player did not work as well with Microsoft’s Windows operating system as Microsoft’s rival Windows Media Player.

Furthermore, the states pointed to internal Microsoft emails and memos that indicated that Microsoft placed pressure on computer maker Dell to change its plans to offer the open source Linux operating system as an option on some of its PCs and servers.

However, Microsoft claimed that a tougher settlement would have a devastating impact on the company and its products. “The remedies proposed by the [non-settling] states would destroy Microsoft,” said Dan Webb, Microsoft’s lead counsel.

He continued by claiming that the rebel states’ proposed remedies were “even worse” than original suggestions of a break-up of Microsoft. The company’s chairman and co-founder Bill Gates is expected to take the stand in upcoming weeks to explain why, should the dissenting states’ suggestions be adopted, Microsoft would be forced to withdraw Windows from the market all together – a claim considered highly contentious by analysts.

The dissenting states propose that Microsoft should sell a modular version of Windows enabling computer makers to take out add-ons such as the Internet Explorer web browser or Windows Media Player. They also want Microsoft to disclose more of its software code and license its browser to other companies without charging royalties.

“If the states’ remedies are adopted, Microsoft would have to withdraw Windows, billions of dollars of intellectual property would be unfairly confiscated and the ability of Microsoft to develop new products would be severely damaged to the detriment of consumers,” said Webb.

He argued that some of the suggested remedies would destabilise the product and create security problems. Webb also argued that many of the states’ suggestions address issues that were not part of the original trial against Microsoft. The hearing is due to last for between six and eight weeks.

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Ben Rossi

Ben was Vitesse Media's editorial director, leading content creation and editorial strategy across all Vitesse products, including its market-leading B2B and consumer magazines, websites, research and...

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