For Microsoft, the jury trial is the unfortunate end product of its trademark campaign against San Diego, California-based desktop Linux specialist Lindows Inc, whose name Microsoft believes infringes its Windows trademark.

While Microsoft has had some success with its claims in Europe, where it has forced Lindows to change its product name and web presence to Linspire in an attempt to avoid a 100,000 Euros per day fine, the US campaign has badly backfired with a jury now set to decide whether windows is a generic term, and as such not entitled to trademark protection.

Microsoft’s last attempt to influence the direction of the case argued that the jury should consider how the term windows is used today, rather than the period before Microsoft Windows 1.0 entered the market in November 1985, as instructed US District Judge John Coughenour.

The US Court of Appeals for the Ninth Circuit has denied Microsoft’s motion to appeal, meaning the trial is now expected to start in the second half of 2004, with Microsoft founder Bill Gates and CEO Steve Ballmer, as well as Lindows CEO Michael Robertson already designated to testify.

Should Microsoft lose the trial, its Windows name will not be entitled to any trademark protection, no matter what secondary meaning it has now developed in the minds of the public.

While the court agrees that the Windows mark has acquired secondary meaning, no degree of secondary meaning will save a generic mark, stated Judge Coughenour in his original March 2002 ruling denying Microsoft a preliminary injunction against Lindows.

In that ruling Judge Coughenour also questioned why the US Patent and Trademark Office approved the Windows mark in 1995 with no analysis or explanation for its reversal of the original decision, having previously dismissed several Microsoft attempts during the early 1990s to trademark the term due to the fact that windows was a generic term used to describe windowing software.

Microsoft has been more successful in Europe where it won a preliminary injunction preventing Lindows from operating in Belgium, the Netherlands, and Luxembourg. It has also filed complaints in Finland, Sweden, France, and Canada.