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."

Comments

Interesting

[Rival]

This may be interesting to watch play out. On the one hand, Psion did actually use the trademark in the past, and the letters it sent could be considered a defense of trademark. On the other hand, if they intentionally falsified information, there ought to be repercussions.

Beside those legal grounds for making a decision, the question of "buzzword-squatting" will likely come into play here. I don't know if that label necessarily applies in this case, but to the extent that Dell uses the concept in its argument, it becomes relevant.

genericization

[TheSHAD0W]

It's come quickly, but I think it's too late; the term "netbook" is now in common use as a generic term, which invalidates trademarks. Now excuse me, I gotta put the milk back in the fridge.

Re:Hooray for trademark law!

[TheLink]

But netbook was indeed a unique enough term (given the usual trademarks - just add capitalization like NetBook etc).

Now you know why trademark owners have to go about suing or threatening to sue people who use their trademarks. If they don't, a few years later it becomes a generic term and people can claim you abandoned it.

To me this is a borderline case. So good luck to the Judge and court :).

Re:Psion is still around???!??!?!?

[Hal_Porter]

Hmm I found this

http://www.mtpt.co.uk/2008/12/a-netbook-by-any-other-name-or-how-psion-is-going-discover-you-have-to-use-it-or-lose-it.html

It was reported earlier this week that lawyers acting for Psion were writing out to those using the term "netbook" to describe mini-laptops optimised for web/internet use. They were politely - indeed curiously politely - inviting people to 'transition' to using another name.

Transition? Politely? Since when do commercial IP lawyers behave like that?

[Declaration of interest: I'm a commercial lawyer, and IP, especially trademark law, is a significant part of what I do.]

There's something going on here which could prove very interesting if Psion proceeds to do anything silly. Like actually trying to enforce the rights they're asserting.

Some basics (skip this if you're familiar with trademark law):

A trademark is sign (normally but not exclusively words or images) which indicate the origin of goods or services.

In general (and specifically in the EU) they acquire protection in one of two ways; by being used - acquiring reputation and goodwill, i.e. people knowing the trademark and there being sufficient economic activity associated with it - or by being registered with the state.

An unregistered trademark has to be used to come into existance. A registered trademark doesn't have to be used, but if it is ever unused for a continuous period of five years it can be revoked for non-use.

Generally, trademarks give the owner a exclusive right to use the trademark for specific goods, and a right to prevent people using similar marks for the same goods or the same mark for similar goods.

The goods and services for trademarks are classified into one of 45 classes. Class 9, for example, covers electronic equipment and includes computers.

Way back when, when laptops were expensive, slow, and heavy, Psion was knocking out a successful range of palmtops. In the late nineties they obtained trademark registrations for the word NETBOOK covering electronics and printed goods, and used the brand for a device called the Psion Netbook (more familiar in it's consumer version, the Psion 7).

Several years ago - as they generally moved to an enterprise focus - they stopped producing the Psion Netbook, and Psion's lawyers now admit that these days all they do in connection with that product is produce accessories for extant equipment.

Psion still has valid trademark registrations. In the EU, for example, Community Trademark 428050 for the mark NETBOOK, covering a variety of electronic equipment and printed materials, is still in full force, was last renewed by Psion in December 2006, and will stay in force until 2016.

Unless, that is, it gets cancelled.

Anyone can apply to cancel a registered trademark on grounds of non-use, but as they'll only succeed if they can demonstrate that the mark hasn't been used for specific goods for 5 years.

Tantalisingly, Psion's own website admits that the "end of life" was in November 2003.

Game over? Maybe. Whilst the same document states that the last maintenance coverage from Psion will not be until 31 December 2008, maintenance services are not goods in Class 9. Psion might be able to argue their maintenance services were branded as "Netbook", or involved the supply of parts under the mark NETBOOK but from my experience of IT service provision I'd be surprised if that was the case.

So the tm is on the borderline of being considered abandoned. Hence the lawsuit presumably.

Psion built and trademarked the 1st Netbook

[Qbertino]

While the trademark is older, it is cleary the Psion Netbook that implemented the actuall concept. And implemented it very well actually - Psion Netbooks have/had a lightweight OS (Epoc for Netbook) a custom browser and a own Java 1.1 implementation back when Java was really new. The enclosure and the keyboard are to date unmatched. Their battery uptime was around 40 hrs.
The pure and simple fact is this: Psion concepted, built and trademarked the first Netbook. Period.

That aside, I find this lawsuit totally silly, it will probably fail. And rightfully so. They should simply build an upgrade of the original Netbook in the very same enclosure with the very same keyboard, put Xubuntu on it and center their marketing around how they built the first Netbook in 1999 and how the concept has become so popular. Tagline "The inventors of the Netbook present: The Netbook 2.0" or something of the sorts. They would get huge press and attention. And the Psion Netbook really does deserve a redo.