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Dell Accuses Psion of "Fraud" Over Netbook
Barence writes "Dell has issued court papers in the US, accusing Psion of fraudulently laying claim to the term netbook. Psion sent out warning letters late last year to PC manufacturers, retailers and bloggers alike, asking them to stop using the term netbook, which the company registered as a trademark in the late 1990s. But in a Petition for Cancellation of Psion's trademark, the PC manufacturer accuses Psion of abandoning the term and fraudulently claiming it was still in use. 'Psion is not currently offering laptop computers under the Netbook trademark,' Dell's petition claims. The petition also claims that Psion made false statements about its use of the term Netbook in a sworn declaration to the US Trademark Office."
A trademark registration is generally regarded as prima facie evidence of a legitimate interest. However, if the mark is not used in substantial interstate commerce after a period of time, the mark can be invalidated with a successful court challenge.
However, if they were using the mark, or intending to use the mark in a good faith effort, Dell can lose and open themselves to paying Psion's legal fees as well as a counter suit, cessation of use in commerce, and a healthy share of any profits used under that term. (i.e. i can defend a trademark on a device i'm designing even if i haven't sold a single unit).
One final thing, IANAL, but I talk to them when I'm feeling masochistic.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
1989 - First known use of the word 'netbook' (registered trademark by Asymetrix corp)
1991 - Trademark abandoned by Asymetrix
1996 - Psion applies to the USPTO for the trademark for netbook
1999 - First reference I can find to a Psion netbook
2003 - Netbook Pro is released (doesn't seem to be for sale anymore, it was a 'clamshell PDA')
2008 - Claimed genericization of the term netbook by Asus and others.
December 2008 - Psion sends cease and desist letters to a bunch of companies
Now - Dell retaliates, files court papers claiming that Psion is not planning on producing a product called a netbook (which is probably true, it's not really their target market, but they seem to like expanding so who knows).
The fact that the term in and of itself is generic may not be enough, after all we have apple computer, and apples are pretty common. It does look like it could be an expensive fight, and I would be surprised if Psion decides to fight it out to the end. IANAL
Qxe4
FYI, it's generally accepted there are five different categories of trademark, each more defensible than the next. The least most defensible mark is a "descriptive" mark. Like "facial tissue." Had the Kleenex brand chosen "Facial Tissue[tm]" for their mark, they may well have lost control of the mark because generic terms cannot function as trademarks.
We all call them Kleenex, but they are facial tissues. If someone had tried to trademark 'facial tissue' we would be in the same ballpark here.
The most defensible mark is a fanciful one, that is a word which does not otherwise exist (Kodak, Xerox, Pepsi, etc). Afaik, Kleenex actually is the best possible name one could choose to associate with tissues, since it is entirely fanciful (and Kleenex company has done a good job associating their name with tissues). As an aside, it is possible for a diluted mark to lose its protected status (such as with Bayer's "Aspirin" analgesic).
These marketing people might as well start trying to trademark things like 'desk' 'pen' or 'screen'.
Netbook would probably fall under the "Suggestive" trademark category (the third most defensible category, behind Arbitrary and Fanciful). Net and Book both exist as words, but were previously not widely applied to this sort of device.
So, in conclusion, "Netbook" is nothing like "pen" or "desk," as far as trademarks go. Neither of these examples would even be registerable, unless they were referring to something they weren't (you could make a ketchup product called "DESK" or a cell phone called "PEN").
I am Jack's complete lack of surprise.
tell that to the owners of Kleenex, xerox, and Q-tip, and coke, and they'll laugh you all the way to the courtroom.
"There is no real right or wrong, just what the majority accepts at the time."
Source, if the link evaporates, search TESS for Netbook, its serial number 75215401
PROTIP: TESS links expire, but each TESS result has a persistent link under the "TARR Status" button. See TARR: Serial #75215401
After World War I, the Bayer trademarks in the U.S. were reincarnated in a new company, confusingly also called Bayer, owned by the American firm Sterling Drug. They attempted to enforce the trademarks, but a 1921 court ruling invalidated the "aspirin" mark on grounds that it had come to be used as a generic term for the class of drugs for too long to be recaptured.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Yes, I found reviews of the Netbook Pro 4 years old, and even Ars Technica's Jon Stokes was talking about them *as new products* in September 2005.
The only claim that any of these people have is that it is a generic term, and to be honest it isn't (most people won't know what one is), and there's plenty of time to stop it being generic if companies that currently use 'netbook' desist from using that term. The fact that some companies used "mininote", etc, shows that they were aware of the trademarked term, or that 'netbook' wasn't a common term even a year ago.
I actually had a Psion Netbook at work. There was only one thing "Netbook" meant at that time and that was it. The smallest laptops at the time were called notebooks. There was no generic "netbook".