Microsoft slaps loyal dealer

Microsoft slaps loyal dealer

A small loyal Microsoft dealer is suffering the sting of rejection after the software giant used its legal firm to force him to cease using its name.

After 15 years operating as a Microsoft software, licensing and books dealer, Software Library of Australia is currently engaged in legal action with Microsoft's legal firm Mallesons Stephen Jaques.

The firm issued a letter, dated 12 November, demanding the reseller refrain from using Microsoft's name to identify the nature of its business.

Microsoft objected to the use of its trade marked name to identify Software Library in advertisements the company placed in the White Pages.

In addition, the letter objected to the com-pany's use of the Microsoft logo on its business card. "We are further instructed that our client has evidence that your use of the Microsoft name has confused consumers into mistakenly believing that there is some relationship between your business and our client, or indeed that your business and our client are one and the same," the letter continued.

Microsoft's legal firm argued that Software Library's actions infringed its client's rights under the Trade Marks Act 1995 and breached sections 52 and 53 of the Trade Practices Act 1974, "which prohibit misleading or deceptive conduct in trade or commerce and false representations as to a range of matters, including representations that a business has sponsorship, approval or affiliation that it does not have".

The firm stated that failure to comply with its demand to cease using the name "could have serious legal consequences" and noted Microsoft had the right to claim compensation of up to $200,000 against the company and its proprietor for breaching section 53 of the Trade Practices Act.

At issue was the dealer's White Pages listing headed "Microsoft Dealer - Software, Licensing and Books", followed by: "This company has no affiliation with Microsoft the manufacturer. The ad is placed by Software Library of Australia."

Mallesons stated such disclaimers are not good enough, Perkins said.

Software Library's managing director, Steven Perkins, does not understand what Microsoft has to gain from preventing a dealer's use of the Microsoft name in promotion material, particularly when it does not sell software direct. "What does anyone think I will gain?"

Perkins said he was not sure how Microsoft's stance will allow other dealers to use the word "Microsoft" in advertisements, and the White Pages and Yellow Pages in particular.

"Microsoft's heavy-handedness is making it more and more difficult for dealers to sell software," he said.

"If you own 35 per cent of the market, you help [the channel]. If you own 95 per cent of the market, you don't need to."

Perkins said he understood Micro-soft's name can be used for the purposes of selling its software, something he said is unavoidable given the fact that 95 per cent of his business consists of software reselling.

"I believe the word Microsoft is going to be considered a trade mark to the extent it cannot be used to sell Microsoft products."

The letter instructed Perkins to delete the name "Microsoft" in the White Pages listing and from his company's business cards, which he has since complied with.

"If they were anyone else but Microsoft I would say go jump," he said. "What else can you do?"

Microsoft also demanded all Software Library staff refrain from answering the telephone by referring to "Microsoft" and use the line: "This company is a dealer for many software companies. It is not connected with Microsoft. If you have any questions about Microsoft products, you should contact Microsoft directly."

Perkins objects to this statement, claiming his company never answered the phone with the word Microsoft.

He sent the law firm a supporting letter from Link Communications that has answered the phone for eight years, but the firm said "the facts are clear, you are misleading the public."

Microsoft also sent Perkins four forms to sign as a guarantee "neither you nor your company will make any unauthorised use of the name "Microsoft" or infringe our client's right in the future.

Perkins said he does not expect Microsoft to react well when the new Yellow Pages hits the streets shortly containing a large advertisement for his company using the Microsoft name. The advertisement was placed in June this year when bookings closed.

Microsoft's legal and corporate affairs spokesperson was unable to comment on the case until it has completed the legal negotiations and indicated it was possible the case could come before the courts.

"We can't actually discuss the issue until it's finalised," the spokesperson said.

Microsoft promised to provide ARN with more details of the case this week.

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