Microsoft is basically going to ask the United States Court of Appeals for the Ninth Circuit to find that it owns the Windows trademark, because the trial judge basically says he won't.

The Honorable John Coughenour, the Seattle federal judge sorting out the trademark differences between Microsoft and Lindows.com - the turned-inside-out infringement case that Microsoft brought against Lindows and wound up defending its own Windows mark - isn't buying Microsoft's argument that the jury should only consider the way the word Windows is used today, not the generic way the digerati used it between 1983 and 1985 before Microsoft "proprietized" it.

Although Coughenour has made no explicit ruling based on timing, he told Microsoft the other day that if it came to it he would instruct the jury to decide whether the Windows mark was generic before Microsoft brought Windows 1.0 to market in November of 1985 and that he would not instruct the jury that if the word was generic that Microsoft's trademark could still be valid.

The judge says there's a lot of room surrounding the question of law here for differences of opinion so he's going to grant Microsoft's motion to appeal before the trial even begins, an unusual step allowed only in very limited situations.

The appeals court will be asked to rule on the period of time governing genericness. The trial judge said in his decision that "a determination on this issue could materially affect the outcome of litigation" - could in fact terminate it - and so it is "in the interests of justice and judicial economy to consider the issue at the present time."

Lindows, glorying in Microsoft's "delaying tactics," while complaining that Microsoft is depleting its resources by dragging things out, claims victory on a key legal issue because of Coughenour's position that once a word is declared generic, it would stay generic no matter how much marketing Microsoft threw at it. Lindows is telling people that as the situation currently stands it "will be able to keep its name indefinitely or until the final decision in the case is made."

Microsoft has had more luck in Europe where it's gotten Lindows bounced out of Holland. Finland and Sweden and is trying for France, Belgium and Luxembourg.

• Taking the Geek Out of Linux -- A talk with Michael Robertson, CEO of Lindows.com --
• Lindows Outlawed in Holland