The judge in the LINDOWS csae has dismissed Lindows.com’s motion for summary judgment, ruling that it is a disputed factual issue as to whether WINDOWS was the generic term for “graphical computer operating environment” software. Text of order here. The case now goes to trial in April.
A key holding in Part VI of the Order is that the court declined to determine whether the relevant date for determining genericness should be 1983, when MS adopted whether the mark, or the present or perhaps 2001 when Lindows adopted the mark. The facts were disputed as to the status of the term in 1983, and that was sufficient to dismiss the motion.
The Lanham Act indicates that a generic mark never becomes protectable – that would suggest that the relevant inquiry should be whether the mark EVER became generic, and if it did, it can never be “reclaimed.” So if WINDOWS was generic the day before MS adopted the mark, that’s the end of it – no trademark.
On the other hand, this may be an odd case. For one thing, I would submit that WINDOWS is absolutely not a generic term for graphical operating environment software today. No one would go into a store and ask for windows software, not expecting to be given an MS product. Of course. it’s the actions of MS which create that reality, and that cuts both ways.
On the third hand, consider the equities of the case. This is not a situation in, for example, 1984, where a company like Quarterdeck (remember them?), is using the term generically and MS is asserting rights. This is a situation where a well-funded company adopted LINDOWS in 2001 knowing that WINDOWS was functioning in the marketplace (if not in the Lanham Act), as one of the most valuable trademarks in the world. This may be an argument to give the situation in 2001 some weight.
As an aside, the decision, and supporting material Lindows has supplied on its website provides a stroll down memory lane for we geezers who used personal computers in the early 80’s (not that I long for the KayPro I used in law school).