The case involves the way Microsoft marketed PCs as "Windows Vista capable" prior to the consumer launch of the operating system in January.
Plaintiffs Dianne Kelley and Kenneth Hansen
In a filing for a class action at the U.S. district court in Seattle earlier this month, lawyers acting for the plaintiffs claimed that even Microsoft's director of marketing, Mark Croft, had become confused about the meaning of "Vista capable" when giving evidence.
Croft's explanation was that "'capable' has an interpretation for many that, in the context of this program, a PC would be able to run any version of the Windows operating system."
"Ready," Croft continued, "may (cause) concerns that the PC would run in some improved or better way than 'capable.'"
After a 10-minute break to talk to Microsoft's lawyers, Croft admitted he had made "an error" and retracted his previous statement, saying that by "capable" Microsoft meant "able to run a version of Vista."
In the filing, the plaintiffs' lawyers said that it was "ironic" Croft had made the mistake. "Mr. Croft understood Microsoft's logo to be telling customers that PCs would run not only the stripped-down Vista Home Basic, but also what plaintiffs contend are the 'real' versions of Vista: the ones that include Microsoft's heavily marketed 'Vista features.' Ironically, Mr. Croft's understanding of what 'Windows Vista capable' means is the same understanding that Microsoft asserts no consumer would be justified in having."
In a court filing of its own, Microsoft argues that it, along with computer makers and the press, educated consumers about Vista and the meaning of the term Windows Vista Capable.
"Plaintiffs ignore the comprehensive marketing campaigns through which Microsoft, OEMs, retailers and others provided consumers with detailed information on the different versions of Windows Vista and the 'Windows Vista Capable' program," Microsoft said in the filing. "Instead, plaintiffs focus on the tiny three-word logo that played only a small role in that process."
It also argues that the case should not be allowed to be a class action on behalf of those who took part in the Express Upgrade program for Vista because the named plaintiff in the suit did not take part in that program, which gave a free or nearly free copy of Vista to buyers of XP machines in the months before the newer OS came to market.
The Seattle-based law firm acting for the plaintiffs--Gordon, Tilden, Thomas & Cordell--is seeking to prove that Microsoft developed its "Windows Vista capable" marketing program, including the logo and the "express upgrade to Windows Vista" promotion, to maintain Windows XP sales prior to the launch of Vista.
Microsoft is fighting the claim. The software company claims that itself, OEMs, retailers and the press had informed consumers about what "Vista capable" meant.
Tom Espiner of ZDNet UK reported from London. CNET News.com's Ina Fried contributed to this report from San Francisco.
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