Microsoft, dealer lock legal horns

Microsoft, dealer lock legal horns

Microsoft's legal battle with Sydney dealer Software Library of Australia has taken another twist after the vendor last week claimed it is trying to protect the channel.

ARN sources have also said that concern about specific Software Library of Australia business practices is the driving motivation behind Microsoft's legal pursuit of the company.

In responding to indus- try concerns, Alex Mercer, Microsoft's PR manager, law and corporate affairs, would not comment "except to say we have had reports from the anti-piracy hotline".

"There is obviously more to this case than what meets the eye," she said.

The two companies appear to be at loggerheads over a trade mark dispute (ARN, December 8, page 1), in which Microsoft's lawyers sent a letter to Software Library's managing director, Stephen Perkins, demanding he cease using Microsoft's logo on company business cards, and the use of Microsoft's name when answering the phone and in Software Library's White Pages and Yellow Pages advertising.

As the saga progresses, however, it has become apparent the legal posturing over trade mark issues is scratching the surface of a deeper rift between the two companies.

Mercer and Kevin Burke, Microsoft's director, small and medium enterprise group, came to the vendor's defence last week and met with ARN to explain they are pursing the case in the interests of supporting a "level playing field" for dealers.

Mercer showed ARN a large folder she said contained files of customer complaints against Software Library. While she did not disclose the actual content of the files, she said they prove customers are clearly confused by Software Library's business practices.

"What this means is this person has an unfair advantage over the channel," she said.

Microsoft initiated legal proceedings against Software Library after it objected to the use of its name in the company's White Pages and Yellow Pages advertisements headed "Microsoft Press Books" and "Old Microsoft Software".

The vendor claimed this use of its name breached the Trade Practices Act and gave the dealer an unfair advantage over other dealers in the market.

Mercer said Microsoft must also make sure it does not catch the attention of the ACCC by neglecting to pursue the dealer. "We can't be seen to be favouring one dealer from another," she said.

After a number of conversations with Software Library over the past week, ARN was unable to contact Software Library to discuss the possibility that Microsoft is concerned about business issues other than trade mark infringements.

Officially, Microsoft and its lawyers, Mallesons Stephen Jaques, are "discussing the letter specifically to do with the trade mark dispute", Mercer said.

Despite repeated attempts late last week, ARN could not contact Software Library to discuss the anti-piracy reports, as its mobile, fixed and freecall numbers diverted, then rang out.

However, in an earlier conversation, Steve Perkins, Software Library's managing director, denied any suggestion the company was doing a "bad job".

"I do know something about [the software]. They can't fault me," he said. "I would like you to find a flaw in what I am doing." Perkins claims he is doing everything to satisfy Mallesons Stephen Jaques' request while still retaining two separate listings for the company in the White Pages and Yellow Pages.

The company has a separate listing for the Software Library name, but also wants to retain the use of Microsoft in a separate heading.

He previously attempted to gain approval to list the name "Microsoft Dealer - Software Licencing and Books".

In an e-mail sent to the legal firm last week, Perkins claims he has changed the listing for "Old Microsoft Software" to "Dealer for Microsoft Software". In explaining his stance, Perkins said in the e-mail: "We understand that you are not officially authorising us to use any phrase whatsoever with the word Microsoft in it. However, we must choose a phrase to describe Microsoft products in order for us to sell them."

Meanwhile, when ARN did its own search for Software Library on the White Pages Web site, it returned the company's own listing, plus listings for "Adobe Government Sales & Licensing", "Borland Government Sales", "Corel Government Sales", "Microsoft Press Books", "Omnipage Government Sales", and "Visio Government Sales". Each listing is followed by the words "Please See Software Library Under S In The White Pages" in upper case with "Software Library" in bold typeface.

This type of advertising, according to Perkins, is not misleading. "They [customers] are going to have to ignore an awful lot to be confused," he said.

Perkins also reports Microsoft has not contacted him directly, and has referred all his correspondence to its legal firm. "If it's so important, why doesn't Microsoft talk to me?"

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