Legal Bytes: Who Is Linspire and Why Is Microsoft After Them?
By John Brewer June 2004
Everyone is familiar with Linux (the other operating system), either by reputation or by usage. Many are familiar with the litigation between Microsoft and a company called Lindows, Inc. The Lindows operating system is based on the Linux kernel and is now known as Linspire. The story of how Linspire came to be is an interesting one.
Lindows is a name based on a combination of the words Linux and Windows. The company was founded in 2001 by Michael Robertson, the founder and former CEO of the online music site, MP3.com Inc. This writer plays with Linux in this form on his home computer. It is very, very good and the interface is familiar to all Windows users. The pricing and licensing are very reasonable and the online software library is extraordinary. It is a great place to get one’s feet wet with Linux. The URL is http://www.linspire.com.
Shortly after Lindows (now Linspire) appeared, Microsoft sued the company for trademark infringement. Litigation was filed in December, 2001. Trademark law mandates that the legal owner of trademarks must protect his trademarks or the right to protect the trademark may be lost. Microsoft is very diligent about protecting its Windows trademark <understatement>, so they sued Lindows. The litigation is pending in the US District Court located in Seattle. Although the case is still pending, the rulings thus far favor the Lindows side of the issue. The trial judge ruled, earlier this year, that once a word is generic, it is always generic; furthermore, the Court has stated that no amount of funds spent on marketing a word can render it non-generic, if it is determined to have been generic at any time. Meanwhile, the court date has been struck indefinitely, and Lindows.com will be free to use their marks until a final decision is made. Microsoft asked the 9th Circuit Court of Appeals for an interlocutory appeal (an appeal prior to the final ruling by the trial court), but the 9th Circuit denied the motion of the interlocutory appeal on May 20.
In addition to the US fist fight, Microsoft also filed litigation regarding the same issues in foreign venues. Microsoft is receiving more favorable rulings in the foreign courts. Microsoft has won injunctions against Lindows in Finland, Sweden, Belgium, Luxembourg and the Netherlands. Microsoft also accused Lindows, Inc., of violating the court-ordered injunction and asked the court to impose a fine of 100,000 Euros per day (approximately $125,000 US). Since Lindows, Inc., is a small company, it had to make a practical decision based on the costs of litigation. They decided to change the name to Linspire.
On April 14, 2004, Lindows announced it had changed the name of its operating system to Linspire. The press released stated: “The Website, www.lindows.com, has been replaced by http://www.linspire.com,
which will now be the primary site for consumers who are looking for information, who want to purchase any Lindows, Inc. products, or who are looking for support for previously purchased software.”
"We have partnerships with hard disk, motherboard, laptop and desktop companies that want to ship our software to their worldwide market," said Michael Robertson, chief executive officer of Lindows, Inc. "By renaming our product, we are able to facilitate distribution of low-cost, easy-to-use desktop Linux."
"Last week, Lindows won in French courts when Microsoft was denied a preliminary injunction," added Robertson. "Despite our victories in the United States and overseas, a name change is still necessary to counter Microsoft's strategy to sue us in courts around the world. We're hoping that this puts a halt on the international lawsuits. A Microsoft spokesperson has publicly stated that 'We're only asking that Lindows change their name which is what we have done."
“The two-year-old case between Lindows and Microsoft over the trademark "windows" will continue in the United States. Microsoft has appealed to the Ninth Circuit Court of Appeals, and the case is pending a decision as to whether the Appeals Court will hear Microsoft's appeal. [Note: this appeal was denied on May 20 as specified above.] The name Lindows will still be used in the United States in certain instances and as the corporate name.”
“Linspire is similar in features and capabilities to LindowsOS, but will have Linspire branding throughout. Current users of LindowsOS will not be affected and an upgrade is not required. The my.lindows accounts of LindowsOS users will now be available at my.linspire.com, including CD downloads, account information, and other resources. Current Warehouse members have the option of downloading and installing Linspire from their my.linspire account at no cost. OEMs and resellers selling LindowsOS products may continue to ship existing inventory. Within two weeks, the entire software line will be available with Linspire-branded products, including Linspire Laptop Edition, Linspire Developer Edition and Spanish-language Linspire.”
“The Website, www.linspire.com, will offer visitors information about the Linspire software and process purchases, while all corporate information about Lindows, Inc. will now be available at www.lindowsinc.com.”
This writer is not a Microsoft basher. He uses a lot of Microsoft software and a truck load of applications that run on the Windows OS. However, he also loves the Lindows … oops, Linspire OS. Readers of this article may want to give Linspire a test drive at the URL specified above. The company offers a free fifteen day trial of their software products at the Web site. Hopefully, there is enough room in the market place for both companies to coexist. And … Microsoft might give some serious consideration to “lightening up.”
John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to
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