Lindows asks court to dismiss Microsoft claim

Lindows.com Inc., a software startup sued by Microsoft Corp. last month for alleged trademark infringement, is hoping to have the case thrown out of court on a technicality, its chief executive said Friday.

Lindows.com is developing a version of the Linux operating system that can run applications written for Microsoft's Windows operating system, as well as for Linux.

Microsoft, in a lawsuit filed in December with the U.S. District Court for the Western District of Washington, asked for an injunction that would prevent Lindows.com from releasing a product that uses the Lindows name. The Redmond, Washington, software maker argued that the yet-to-be-released operating system, to be called LindowsOS, would create confusion for consumers in the marketplace. Lindows.com, which is based in San Diego, California, has since argued that it can't be sued in a state that it has never done business in, Lindows.com Chief Executive Officer Michael Robertson said. Lindows.com filed a motion to dismiss the case on Jan. 2 in which it urged the Washington court to throw out Microsoft's case because Lindows.com is outside the Washington court's jurisdiction.

At the same time, Lindows.com filed a complaint against Microsoft in the District Court for the Southern District of California in which it makes a similar claim.

"We have put in a motion to dismiss the case because Microsoft sued us in Seattle and we've never done any business in the state of Washington," said Robertson, who also founded digital music company MP3.com Inc. "In fact, we've never done business at all."

Microsoft did not return repeated calls for comment.

Dolores Hanna, a trademark attorney with Bell, Boyd & Lloyd LLC in Chicago, said the jurisdiction issue could typically present a valid defense. However, it may not hold up in this case because Lindows.com and its operating system are being marketed on the Internet, she said.

"These days it's very hard to assert (that you're not doing business in a particular area) since advertising and marketing can be carried in various media that can cross state lines," Hanna said. "It could be challenged if (Lindows) is promoting the product or trying to market it in such a way that it is looking for customers" in the state of Washington, she said.

First unveiled three months ago, Lindows.com originally planned to release a preview version of its product late last year, but missed that deadline in the midst of its legal brouhaha. The development of LindowsOS has been slowed, Robertson said, because the company has been forced to hand over mounds of paperwork related to the case, including its mailing list. "When you have to stop your work to produce thousands of documents its a real drain," Robertson said. The company has 22 employees developing and marketing its product.

The case was originally scheduled to go in front of a judge Jan. 11 but has been postponed until Feb. 1, Robertson said. At that date, the judge will either dismiss the case or start to hear oral arguments to determine whether or not to enjoin the operating system's release, he said.

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