Dell files to strip "netbook" of trademark status
By Nilay Patel 
posted February 19th 2009 1:31PM
posted February 19th 2009 1:31PM
[Via thegadgetsite]
posted February 19th 2009 1:31PM
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Why is is nearly guaranteed Psion will lose?
It's kinda funny because I thought the general feeling was that rarely do trademarks become generic. Yeah, sure, the US Government took "Aspirin" from Bayer during WWII, but no matter how many people call an ice resurfacer a "Zamboni", Olympia still can't call their ice resurfacers Zambonis.
So what gives? Why is this a slam dunk? Why did snurfer have to be replaced by "snowboard" in widespread use and sailboard by "windsurfer" while Psion is automatically expected to lose this battle?
It expired during WW1, and lost it status in numerous other countries, because the companies in the UK/USA/etc. that produced Aspirin were owned by Bayer and during the war the USA basically seized all their assets in the US and auctioned them off (including patents and trademarks). In the UK it lost it's status because without Bayer there was a shortage of Aspirin so they removed their tradcemakrs so other companies could produce it.
Dell's brief is linked -- although they're alleging genericness as one basis of cancellation, there are a total of three claimed, and I think the abandonment argument is a strong one, as is the fraud claim if true. We'll see, I just think Dell has money, time, and momentum behind it here.
Dell will certainly win this one. Usually they know what they are doing.
Marks are held to be generic more often than you think. Since Psion filed for its registration, the term "netbook" has become synonymous with small underpowered notebooks like the EEE PC or Aspire One. Psion failed to educate the consumder that "netbook" means "Netbook(R)". This is how genericide happens.
the questions in the matter are when did the original company trademark the term, how long have others been using it, when did the original company start 'protecting' it. Because if they were granted the term 2 years ago and since then 20 companies have been using it but just last week they decided to do something about it, they have weakened their case.
to go back to your comment. I believe that Bayer waiting several years before enforcing their right to the term aspirin for that particular chemical compound. which is why the Government called foul.
net
The fraud argument is just an extension of the abandonment one. Dell says that Psion says they didn't abandon the name and this is a lie. If they didn't abandon the name, then it wasn't a lie.
If Psion had a website up with info on the Netbook (even just driver downloads) for the last 5 years, Dell is going to have a tough time saying Psion abandoned the mark.
And, Windows is sure to lose too! Sadly for Dell, Psion made a NetBook! Perhaps Dell could make a MacBook, or Psion could make an Inspiron? Hell, let’s call the net Windows Large!
I think Psion has a good chance of winning. They haven't abandoned their trademark-- They sent notices to major companies that were using the term, informing them that they were breaching a trademark. Psion only has a duty to PROTECT their trademark. They have made a Netbook product in the past, and still have another product, the Pro Netbook, which has not been discontinued.
A quick look at Psion's website shows that they still sell accessories and provide drivers for their Netbook products:
http://www.psionteklogix.com/public.aspx?s=us&p=AccessoryCatalogue&aCat=all&page=1&pMod=48
The Patent Office has denied patents from companies like MSI already, for products like the "WIND Netbook".
I wouldn't be sooo sure that this is a guaranteed loss.
"[I]t's almost certain that you'll lose this legal battle." That's a pretty bold statement with no legal analysis to back it up. Shoddy reporting and shoddy lawyering.
While they may not have the best case, they have a decent argument that "netbook" is a suggestive term that gives Psion automatic trademark rights, which it sounds like it is enforcing. This is far from "almost certain that [Psion will] lose."
Based on the fact that Nilay is actually a lawyer who's familiar with patent/TM law, I think I'll believe his take on things. If it was one of the other random editors, then you may have had a point.
It's not shoddy reporting because this isn't a news site. It's a blog. When means the blog posters can give whatever opinion they wan't whether it's wrong or right or even valid.
Engadget knows Punditry 101.
Umm basically they're saying "[I]t's almost certain that you'll lose this legal battle." because Dell vs Psion is like The Terminator vs. a short fat asian girl.
You should give more credit to the short, fat, Asian girls. They'll sneak up on you and impale you with the chopsticks from their hair before you can say "sucky sucky five bucky"!
@ ProfessorDex:
WTF?
D,
What is that quote about asking a lawyer, “Can I sue?” Yes!
@Darius,
Don't be a sheep. Think for yourself.
@ Darius, I'm a lawyer that specializes in patent and trademark law too... and I actually practice too. Very few lawsuits are "absolutely certain" about the outcome, so to so brazenly say it shows poor reasoning on Nilay's part.
@kjb - this is absolutely a news site... I hold bloggers who act as reporters to the same standard I would hold anyone reporting on things they claim to be experts on. People rely on engadget's analysis (god knows why) and for that reason they should actually think before they state something with authority.
Is "netbook" even all that wildly known of a name that a new term cannot be coined to replace it?
Suggestions:
Mini-note
Mico
Pocket book
Trapper Keeper
Cloud book
Quick book
Netbook doesn't even have a clear meaning anyway. A laptop that connects to the internet? I have a 1997 laptop that can connect to the internet, is it a netbook too?
Those suggestions are horrid.
Do you always use your laptop on top of your laps? Do you only type notes into your notebook?
Hell, then add your own.
Geesh!
nettop (switching inserting net into notebook to inserting net into laptop)
Trapper Keeper is a trademarked name.
Those names are registered already, with mini-note and cloudbook already falling into the netbook category.
Er, subtract one "already" of your choosing from that last statement.
"Trapper Keeper is a trademarked name."
Uh, duh.
Ok so when you work out a new name to replace 'netbook' be sure to ping the existing 10-15m users. Be quick though because there's another 95,890 added each and every day so you don't want to build up a backlog.
'netbook' is a solid term. It makes sense... it's not wanky like other tech terms (podcasting?) and it has an inherit meaning: "Internet Notebook".
Yes your 10 year old laptop could could connect to the internet but that does not a netbook make. Netbooks are *optimised* for Internet use, which means less power, storage (and therefore longer battery life), more durable, etc. They don't have to be smaller (in fact a *large* screen is better for Internet than a small one) nor cheaper (expect netbooks that are both cheaper and more expensive to come out this year).
Sam
Alright then. I suggest that instead of the word "notebook" we begin using the word "clabbasteroj."
It's kind of funny that Intel has registered netbook.com
Registrant:
Intel Corporation
Domain Admin
2200 Mission College Blvd
Santa Clara, CA 95054
US
domainadmin@intel.com
+1.4087658080 Fax: +1.4087656071
Domain Name: NETBOOK.COM
Registrar of Record: Corporate Domains, Inc.
Administrative Contact:
Intel Corporation
Domain Admin
2200 Mission College Blvd
Santa Clara, CA 95054
US
domainadmin@intel.com
+1.4087658080 Fax: +1.4087656071
Technical Contact:
Intel Corporation
Host Master
2200 Mission College Blvd.
Santa Clara, CA 95054
US
hostmaster@intel.com
+1.4087658080 Fax: +1.4087656071
Domain servers in listed order:
NS1.INTEL.COM
NS4.INTEL.COM
Created on..............: 24-Sep-08
Expires on..............: 24-Aug-13
Record last updated on..: 29-Sep-08
If any company was to trademark the netbook name it should be Intel. I mean, they do happen to make the only part that is consistently in 90% of the netbooks available right now. The atom is the main component of the netbook and if you're right and Intel owns netbook.com... then there you go. I believe they have more right to the name than some stupid place called Psion. I hate them because they use a ps to spell their name and that sounds trendy. I hate things that try to be trendy.
I don't disagree.
My point is that for a company to complain about their trademark usage by other companies like they are, and not to have registered the domain, which was apparently available up to September of last year, is just stupid.
It doesn't look like they've done a whole lot to protect their trademark. Looks like they were waiting for deep pocket companies to start using it then sue them for a payday. It's the Monster way...
It'd be nice if DELL lost and Michael Phelps blew a hit in their face.
Psion really lost all rights to the name when they gave up making these machines ages ago. Just for abandoning that part of the market they deserve to lose. I really loved my Psion Netbook (and every other Psion I ever owned).
as I recall, trademarks don't require use to keep ownership. this is where they stray from patents which can lose their legal hold if you patent something and then sit on it for months/years.
with a trademark you merely have to protect it. if you go around letting folks publicly use your term over and over (especially several groups) and you say nothing then you are implying that you don't care and it's cool with you. so then if you suddenly turn around and scream foul, the courts will often laugh you out.
in this case it looks like 'netbook' was trademarked in 2000. so how long since then has the term been used by other companies and even blogs without being used to reference said company and products. and when did said company scream foul. heck just the fact that they publicly said they are only going after those actually making money could hurt them because it makes their motive look like pure greed
LAGal, you have it exactly reversed. You have to use a trademark to keep the rights, and you can sit on a patent without practicing and still have rights. That's how we have patent trolls but not trademark trolls
I'm soooo glad DELL is suing!!! Psion's "nastygrams" were stupid and ridiculous!
But I do have to say if they did come out with a true Netbook of their own other than that silly thing from the 1980's it would be a stroke of genius and it would make total sense. But somehow I think they're not that smart...
It's from 2003, not the 1980s. And they're still selling parts for it.
Engadget, sometimes you're just fucking lame. Psion company actually MADE A PRODUCT called "netbook", 5+ years before this new generation generic "netbook" phenom took off. Just because it failed and they don't make it anymore, doesn't mean their trademark should be thrown out, IMHO.
Billy !! Billy, billy....billy.......CALM man !! CALM ....... Breatheeeeee
Your opinion and what law says are two completely different animals.
I'm gonna call my MSI Wind a DreamCast or maybe a Palm PC... I don't think Sega or Microsoft would mind anymore...
I think the problem here is that whoever allowed Psion to copyright a term like "netbook" was a little near-sighted in their allowance of such a generic term. It's a bit like somebody trying to copyright "notebook" in the laptop space. It's impractical, and although they might actually win the ruling to stop other major manufacturers from using it, trying to get the blogoshpere to stop using the term is a losing battle at this point.
First, they didn't copyright the term... they trademarked it. Second, a term that has never been used before cannot possibly be generic, and when Psion coined the term "netbook" it had never been used before. It may have been descriptive of what the product is, in which case they couldn't get a trademark until they became associated with the name.
Don't talk about things you don't understand.
My apologies for mixing up the terms, you're right: Trademark.
That aside, when the term "netbook" came back into popularity in the last year or two, it was completely independent of and in no way referential to Psion's products. Since then, it's become a universal term for a type of product and broadcasted that way ad nauseum by almost every tech blog, manufacturer, etc.
My point was, I think Dell's argument that Psion has essentially abandoned their own Trademark and that it has no bearing on the current use of the term "netbook" now is, if not air-tight in court, common sense. It's bringing some much needed relevance to the table.
As to your other replies, this is definitely NOT a news site. Blogs like Engadget take tech news (most often from other sources: press releases, etc.) and commentate on them. If you don't like the commentary, you don't have to read - but don't go around belittling the bloggers and other people who reply.
This is why companies have to protect their trademark as soon as they see it, no matter how small the violation. I bet Psion is kicking themselves right now.
Eh, somebody had to do it eventually.
I don't see why Psion should'nt win, if of course they have enough money to fight the legal battle.
This is about money really.
Doesn't Microsoft have trademark on the english word : Windows?
It's completely ridiculous in the first place that 2 common place words when compounded together can even be trademarked in the first place.
netbook is a new word, that's it, end of story.
Microsoft almost lost Windows trademark when they sued Lindows for infringing it. They settled out of court, and paid Lindows several million dollars, in exchange for them changing their product name to Linspire, and dropping their challenge of Microsoft's trademark.
So yes, Microsoft has a trademark on Windows. But only because they have deep enough pockets to keep anyone from getting it invalidated.
This case could honestly go either way. Generally to invalidate a trademark you need to show that a word was in common use before the trademark was filed, or that the word has been in common use for a long period of time with no affiliation to the trademarked product. "Netbook" came in common use after the Psion product was trademarked, and has only been a generic term for a year or so. So the judge could go either way and it would be a reasonable decision, IMO.