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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?
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.
I used to sell the Psion Series 5 back when I worked at CompUSA. I really thought the company had gone belly-up.
Which leaves me to wonder, how many others saw the article and thought for sure that Psion was already no longer?
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
meh, everyone and the dog use the term netbook referring to small laptops. once is in the public domain manufacturers can call it pre-laptop chiqui-laptop pico-laptop pixie-laptop and still when someone goes into the store he will be asking for netbooks.
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
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.
Why the hell did Dell have to be the voice of reason here?
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.
Some moderators must really be in a foul mood today--it seems nearly everything's being labeled as "Offtopic." I think your question is valid since most people who skimmed the posting might be compelled to wonder the same thing (and this is Slashdot, after all, so no one's going to bother reading the article, right?).
What I'm curious about is why Psion waited so long to start sending out notices. I always thought that if a company felt it had reasonable grounds for defensibility with regards to a trademark, they wouldn't sit on their hands for months at a time. It's almost as if they were waiting to see how well netbooks performed in the market before deciding it was time to vie for a cut of the profits (probably via lawsuits). It's a conspiratorial notion, sure, but in this day and ages where patent trolling firms sit on mountains of paperwork vaguely describing some generic mechanism without any capacity for manufacturing the product on their own, sue others who "infringe," and then make their profits from settlements or royalties... it's not too far fetched!
He who has no
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
It's unfortunate the Save the Netbooks campaign was not credited in the summary (nor many of the resulting articles) for uncovering Dell's petition to cancel (note that the linked document is in our account), even if only because we have the most complete collection of information and research on the topic.
We've been working hard over the last days to overturn Psion's trademark and it was actually in the course of filing the petition to cancel that we discovered Dell had beaten us to it by a day! We're happy they're playing the white knight this time (after last year's "cloud computing" claim), and especially for their having added the "fraud" angle to our pleadings for abandonment and genericness.
Anyway we wish them the best of luck, even though we don't think they'll need it.
Save the Netbooks
Psion, for over a decade, sold cool PDAs that were well ahead of their time and very useful. Then Windows CE came along, Psion ran away and Windows CE almost totally abandoned the keyboarded PDA concept. That's why we've had a five year gap, followed by a line of machines that badly implement the concept with X86 processors and XP or Linux. It's good Psion have noticed this. But they have done the wrong thing. Notable examples of Psion wonderfullness: AA battery compatibility, programming language on-board, basic office suite, communications support. Given this was in 1990 - that's cool. And it was all in a package half the size of a book. Now we have 'netbooks' that are just small laptops...
I hear more than usually, netbooks referred to "minilaptops". I try to use "netbook" if needed officially, but the "minilaptop" does sound nicer.
And when I searched littlebit around Internet, I found that there has always be a computer class called "Sub-notebook". And that is class where actually the "netbook" goes. You can find computers from toshiba and others, from 90's what are smaller than current netbooks sold, but ain't called netbooks but sub-notebooks. And they run Windows 95 or Windows 98 (newer models) easily.
So what happend when I first saw the Asus EeePC, that it is just resurecting the old Class, I tought they should get better name than "netbook". And for me the sub-notebook does sound better in the techinical view and "minilaptop" in daily talk.
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.
We suffer more in our imagination than in reality. - Seneca
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