After several legal setbacks in Europe, Linux vendor Lindows.com can now claim a victory in its U.S. battle with Microsoft over the Lindows name, which Microsoft says is too close to Windows.

A U.S. district Wednesday said that, were the case to come before a jury, it would instruct the jury to consider whether "windows" was a generic term before Microsoft introduced software with that name in 1985. The court also cited an earlier case stating that, if a term is found to be generic, then it cannot be the subject of trademark protection, according to a copy of the ruling supplied by Lindows.com. It was made by the U.S. District Court for the Western District of Washington.

Microsoft sued Lindows.com in the U.S. in December 2001, accusing it of infringing its Windows trademark and asking the court to bar Lindows.com from using the Lindows name. Microsoft lost two requests for an injunction. The case was set to go to trial before a jury on March 1.

The trial has now been postponed pending appeal of the court's decision, according to the court ruling.

Microsoft disagreed with the court's ruling. The validity of the Windows trademark should be judged by the present day usage and understanding of the word, said Microsoft spokeswoman Stacy Drake. Still, the company is pleased it can get a ruling on the issue from an appeals court before the case comes to trial, she said.

"We are very encouraged that the judge has granted our request to ask the court of appeals to provide guidance and clarity on this important issue of law before going to trial," she said.

Lindows.com, in San Diego, described Tuesday's ruling as a major victory that will allow it to keep using the Lindows name indefinitely or until the final decision in the case is made. The ruling confirms that a company, no matter how wealthy, cannot buy a word out of the English language, Lindows.com counsel Daniel Harris said in a statement.

Lindows.com has been less fortunate in Europe, where judges in Finland, Sweden and the Netherlands have sided with Microsoft and barred the San Diego company from using the Lindows name.

The IDG News Service is a Network World affiliate.

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