Microsoft Corp. suffered a setback in efforts to enforce its Windows trademark when a Seattle federal court ruled that a jury must consider whether the word was a generic term 20 years ago.
The software giant, which is suing Lindows.com for trademark infringement, had argued that the present-day usage of the word should be considered in determining whether it is generic. But U.S. Chief District Judge John Coughenour, of the Western District of Washington, ruled Tuesday that he would instruct a jury to consider whether the mark was generic in November 1985 when Microsoft Windows 1.0 entered the market.
"If the term is found to be generic, 'it cannot be the subject of trademark protection under any circumstances,'" he wrote, citing the 9th U.S. Circuit Court of Appeals 1999 opinion in Filipino Yellow Pages Inc. v. Asian Journal Publ'ns, 198 F.3d 1143. . . .
"[P]eople forget there were all these windows systems out there in the 1980s," [Lindows' attorney Daniel] Harris said. Now, "after $1.2 billion in advertising," people think of Microsoft when they hear the word.