Psion’s netbook trademark defense- Psion responds

32 Comments

UPDATE: Psion responds again and we’ve added their further clarifications at the bottom of this post.

We broke the story about Psion’s trademarks of the term “netbook” and their legal team’s defense of same by sending out letters to those openly using the term.  This has kicked off an interesting discussion about the defensibility of a term that Psion hasn’t used for years.  Today we received correspondence from Origin, the legal firm representing Psion’s trademarks who wanted to clarify their position:

I just wanted to address a mistaken assumption made by some of your readers (including journalists in more countries than I now care to count).

When you said in your 23 December blog that I’d written to ‘some netbook enthusiast sites’ asking them to cease and desist using the ‘Netbook’ registered trade mark, many readers assumed that these letters had gone to people simply commenting on the tech scene.  One of your early posters, called Andy, even said:  “Why go after a bunch of bloggers? It’s not like they’re profiteering off the name.”

Andy makes a fair point.

Here are the facts.

We have sent letters out solely to those making a direct, financial profit from use of the ‘Netbook’ trademark.

95% of all letters have been sent to retailers and manufacturers using the ‘Netbook’ trademark (including the very largest players in this space.  You’ll no doubt be aware that few portable manufacturers in fact use the ‘Netbook’ term at all.  For example, Asus, a pioneer in this space, does not to any appreciable extent – it’s an Eee PC.  Not an Eee PC ‘Netbook’.  But it’s a different picture in retail and our over-riding priority is to persuade the retail community to adopt a different term.)

5% have been sent to websites that have sponsored advertising or other for-profit links that include the prominent use of the ‘Netbook’ trademark and a link to a retailer or manufacturer using the ‘Netbook’ trademark.

0% have been sent to straight blogs, tech enthusiasts sites or review sites – i.e. with no prominent ‘Netbook’ related sponsored advertising or other ‘Netbook’ related for-profit links.

netbook-ads1Attached is a screen grab (pictured right) from the www.small-laptops.com site, whose letter you used.  As you can see, it falls in that 5% category.  (He can of course easily remove the ‘Netbook’ related sponsored advertising or other ‘Netbook’ related for-profit links, if he wishes to).

When we started this project for Psion, we drew a firm distinction between entities profiteering off the ‘Netbook’ name, and those not doing so.  Neither we, nor Psion, thought that it would be fair, proportionate or sensible to start this process off by writing to those not profiteering financially and we have not done so.  Journalists and bloggers obviously have to use some term to refer to the new class of ultra-low cost portables – we’d rather they didn’t use ‘netbook’ now that they’re aware of Psion’s registered trade marks, and we hope that they too will transition to whatever term becomes the legitimate generic.  But are we about to start a wave of lawsuits against journalists and bloggers? The answer is an emphatic ‘no’. Our priorities lie elsewhere and always have done.

I’ll obviously need to send clarificatory emails out to those journalists who got the wrong end of the stick, but if you wanted to post something yourself first, please let me know and I’ll hold off a day or so.  (Not exactly a scoop, but just a professional courtesy.) I have, for example, just received a mail from Der Spiegel in Germany asking for urgent clarification, after reading a posting in the UK’s Guardian. I do need to give them both all the facts asap.

There is of course a legitimate and important question centered on the extent to which corporations can influence or control the language we ordinarily use.  If your readers are really interested in the words they use, then perhaps they might give some careful thought to why they started using the term ‘netbook’ in a generic way in the first place. If you’re aware of substantial ‘generic’ use that pre-dates Intel’s 2008 marketing efforts to promote its Atom processor, I’d be interested to learn of it.

Incidentally, we have started to receive direct responses from recipients of our letters.  So far, all have agreed to use a different term. I think that’s because, when you really look carefully at the merits of the situation, both legal and ethical, Psion has a fair point.

Most retailers and manufacturers in my experience respect others’ registered trademarks – after all, they are frequently their own most valuable assets.  But there’s obviously quite a mountain to climb here.

Anyway, best wishes for the Christmas season.  If you have any follow-up questions at all, feel free to let me know.

So this response clears up some things but muddies up the waters for those sites who use generic ads like the Amazon ad they pictured.  The only way I can interpret this response is that any blogs or sites that use third party ads with the term “netbook” in it, something sites cannot easily control,  may be open to a cease and desist letter of your very own.  At least Origin and Psion are willing to address this but it’s still not clear where this will end up.

UPDATE: Psion reps have sent us further clarification on their position since this went live:

Thanks for posting my response.

Just a couple of further points of clarification.

First, Psion has been using the ‘Netbook’ trademark continuously since 1999 – perhaps in recent years the extent of use has not been that great, but Psion is still actively supplying ‘Netbook’ accessories and also providing maintenance and support to existing ‘Netbook’ users.  Registered trademarks aren’t just for protecting multi-billion dollar brands.

Secondly, where a blogger uses context sensitive advertising that is completely outside of its control (so it has no knowledge at all whether a ‘Netbook’ related advert will be placed in its blog site), then we’re taking the view that we need to focus on working on persuading the featured retailer to adopt a term other than ‘netbook’.  So if any recipient of one of our letters is in that position, if they want to let me know, that would be helpful all round.  Although we can’t accept that use of ‘netbook’ in a generic fashion is legitimate, our priorities lie elsewhere.

32 Comments

Cherry Newcombe

Until Psion brings out a new netbook, the offerings from LG, Acer, Asus, HP, Lenovo, Dell, Samsung, etc. will be seen and termed by all buyers as netbooks. It’s too late to reverse this branding.

The only way of enstating their brand name again is to bring out one. Their old netbook is too far away in time to qualify – what does the Psion netbook really mean to buyers today anyway?
As a past user of the 5mx and Revo, I would very much welcome Psion’s entry.

Ryan Marshall

Just a note to say last Saturday PC world (largest high street computer store chain), in the UK are still showing signs in store with netbook on, so psion obviously are not getting their way fast.

Matt

Is Net-book also trademarked? If not then several hundred sites can just add that little hyphen and FU Psion.

Peter McCafferty

All,
As a long time Psion user, and still very active with my Netbook and 5mx, I see no reason whatsoever why Psion should not be pursuing an active defence against misuse of its ‘Netbook’ product and name.

If you had invested millions into a product, taken it to market, and continued to support it today (regardless of how small that market may be), then you too would be mightily miffed if the world-at-large had purloined your product name! It is theirs, and it belongs to them under all definitions of the law, regardless.

The Netbook community, as it still is, still waits for a potential re-entry into the EPOC PDA/sub-notebook market by Psion; who knows, maybe moments like this might convince the Psion Board to do so.

Psion are not a company who chase a fast buck, they are respected by their user group for bringing solid, well developed products to market. This is a fact. Similar to Acorn computers of the late 1990s, they had an OS that moved on past their manufacturing of hardware. Psion begat Symbian, an OS now powering millions of mobile phones; and Acorn begat Risc OS, still an active computing platform, albeit with a dwindling market share; but a going concern for many small retailers and software developers.

So, stop moaning, respect the market place, and allow companies who try to maintain viable alternatives to M$ Windows et al, to enjoy the fruits of what is rightfully theirs.

regards

Peter

Decade

I don’t really like the “netbook” name, so I’m not particularly sympathetic to those who promote its use, but…

Surely Psion could have chosen a better time to try to enforce their trademark. Like, BEFORE the winter holiday shopping season. Now the term is stuck in everybody’s heads, and Psion look like jerks when they try to enforce their trademark.

I also have to question the intentions of a company founded by someone so pathologically afraid of competition that he shuffled the Symbian OS into the cell phone niche, rather than develop the palmtop computer category.

Jez

Thanks very much for that clarification. Seems fair enough to me and I’ll ensure that any affiliate links on my site (within my control) lay off the “Netbook” term. It won’t make a lot of difference to me or SammyNetbook.com readers – I just didn’t want to have to move domain for a second time!

Cheers,
Jez.

R

Psion is a poor excuse for a mobile computing company and a trademark defender. Not only did they squander their long head start in “palm tops” and the consumer space, companies such as Motorola/Symbol and Intermec completely dominate the warehouse space that they remained in. Looking at the industrial design of their mobile computers is (IMO) is kinda of like comparing a Korean car to a luxury Japanese or German Vehicle. Take a look at their computers built for forklifts/vehicles, they look like something circa 1995. My uncle Harry could have done better and he draws on napkins and drinks a lot.

Now nine years after they have a failed product, they decide to defend a trademark because it is getting some play out in the Tech world.

Good going guys

Miles

Psion went through the efforts and activities required to register their trademark. It was and is a trademark. They are still a viable company, still support their netbooks,and continue to provide accessories for the mobile market. It is their right and responsibility to protect their trademark. They should be sued by their shareholders of they DIDN’T protect their asset.

Come up with another name folks, several have been suggested here, and move on. If I was Intel, or one of the big players, I’d be negotiating with Psion to buy the trademark.

It sounds similar to the domain name battles for a great .com name. If someone thought of it before I did, good for them. If I want it, I will negotiate to attempt to gain the name.

Come on, let’s spend time on something that really needs our attention like hunger, healthcare and …

Faisal

GoodThings2Life,

Common on fella, TM issues aside, PSION produced one of the first handhelds in the world, and yes it was the first PDA i bought!

Your characterisation of the company is just silly……

Chris R

Alright I admit Kevin. If I owned this copyright I would have waited too. That’s cause I’m 25 years old, not the owner of a tech company and could always use more dinero :-).

You’re right. They might have waited for the water to get warm and then jump in. I thought about that but wrongfuly didn’t mention it.

GoodThings2Life

I hate, hate, HATE copyright holders that make no effort to protect their copyrights until long after the fact, especially when they are some small potatoes entity that nobody has even heard of before or hasn’t done anything worthwhile to be worthy of recognition.

Psion falls into both categories. I’m all for protecting one’s interests, but sometimes you have to learn when to fight and when to let it go. This is time for the latter…

Scott Smith

Who still uses an actual notebook (the paper kind) anyway? ;-) Hasn’t the term “notebook computer” run its course anyway? They don’t open like a notebook.

So, if laptop is the most appropriate term to refer to the usage of the device (really it should be kitchenetabletop or airlineseatbacktraytabletop) then shouldn’t we be using”nettop”?

Al

I think Psion is going a little extreme. Had they continued to upgrade, and manufacture the Psion Netbook, then I could see them continuing to have a legitimate right to continue to use the “Netbook” name. However, as they discontinued making that product what good is it? It seems to me they’re just looking to make a quick buck, since they’re crappy product couldn’t even hold a candle to what today’s “netbooks” offer. Good idea back in 1999, however the idea was not implemented very well.

There is no way that they’re going to be able to squash companies from using the “Netbook” term, as it is too well integrated into this category. You can’t really call what we have a Sub-Notebook, or anything of the sort. These truly are netbooks. Most of the work is done online offering you longer battery life, and a quick, cheap, efficent, and easy way to connect to the net. With the Psion netbook, its not so easy.

Long live “Netbook”!

Kevin C. Tofel

Chris R., I agree with your assessment about protecting copyright / trademark. My question would be: what took Psion so long, assuming that their protection activity just started in the last month of this year. Where have they been since the netbook term cropped up about 8 months ago? Not to mention well over 10 million units moving off shelves. ;)

Bill, you might want to try your Google search again. I searched for the term just now in Google and there are plenty of sponsored ads and shopping results that actually appear before webpages referencing the term. In fact, I hit every netbook manufacturer’s site last night and they all referred to the product as a “netbook”. Even Asus’s most recent product press release for the Eee PC S101 calls it a “netbook”.

bill

I can see Psion’s point, it must be killing sales of the netbook.. in fact I just tried to google search it for purchase and you cannot find one site that sells one. Psion must be very upset that the recent use of the term “netbook” revived an otherwise dead trademarked name.

Chris R

To my understanding you have to actively protect your copyright so I see no problem with what Psion is doing. I’m usually don’t side with one company going against the grain either.

When it comes to advertisements some companies make you enter keywords to help them deliver ads oriented to your site. These website owners might be throwing around the “netbook” term.

Chris EA

Please, please, please understand what you are typing before you type it.

You are responsible for what appears on your site, it is no defence to say you cannot control the adverts that appear there. Worst case, you can always close down your site, but you must operate within the law regardless of your opinions on it or the motivations behind it’s application.

As for controlling the content of adverts on your site, if you are using AdSense use the Competitor Ad Filter. Amazon has an equivalent but the name escapes me for now. If you are dealing with a firm directly, you need to vet the adverts case by case.

elbowz

Sounds an entirely legitimate and fair handling of the issue by Psion. They have a duty to shareholders to protect value and by allowing the Netbook name to become generic they don’t fulfill that duty.

Whether the intention is to sell the trademark on or enter the market with their own product is moot, the trademark is theirs to use and protect as they see fit. Credit to the company for using an admirable degree of common sense in applying its legal rights.

Ian Tindale

I was playing around with some ideas for alternative terms. This is on the assumption that these “formerly misnomered as ‘netbook'” devices are to develop into not ‘very small computers’ but rather, simply ‘web browsers on batteries’ – ie, other more ‘computery’ applications fall to the periphery and effectively the browser becomes the ‘desktop’ default application. In other words, they become effectively just web browsers – on batteries.

Assuming the term ‘book’ is desirable (it’s small, like a book; it opens up (admittedly the wrong way round); like a book; it’s informative and entertaining, like a book; etc):

• Webbook – sounds clunky, two ‘b’s next to each other, not nice.
• httpbook – accurate, but too clumsy to read, let alone say out loud.
• hypertextbook – getting closer, but too long, and a bit 1945 ‘Memex’.
• hyperbook – now, that’s more like it. This has sales appeal. Has this been claimed for such a usage, yet?

Alan Lindsey

I don’t really get it: Psion dropped its Netbook” product before 2007 and was earning no revenue from the name. Come 2008 or thereabouts, people start talking about netbooks, and Psion is earning no revenue from the term. 2009 onwards, if Psion gets its way, retailers and advertisers stop using the term “netbook”, and Psion earns no revenue from the name, while alienating all those people who find the term a convenient shorthand for a low-powered notebook. So where is the revenue stream or positive PR for Psion?

Cptnodegard

How stupid are those people? its obvious theyve never had any dealings with ad companies, or they wouldn’t say that it’s easy to stop specific ads. These people should be glad noone gives a crap about them or theyd lose their customers, somehow i doubt they have any.

David Cohen

Shakir,

Nothing to do with patent trolls or possibility of market re-entry. Trademark enforcement is all about retaining ownership through use, and Psion haven’t had a netbook on the markt for five years.

Which interestingly, is about the time the Courts normally allow before they will automatically pass on a trademark through inactivity.

Well-reasoned it may be (and we clearly have a PR-savvy law firm here) – but wothout enforcement through use, Psion have a VERY weak case. And they know it.

David.

Shakir Razak

Hi,

That’s one of the most reasoned and reasonable letters from a lawyer about trademark rights almost ever.

Psion created the whole category almost 3 decades ago, they were first and best, they fully deserve any benefits that come from that, and they’ve never been patent trolls, they built real products, and could have done so much more still.

They might no longer be in the consumer space, but Psion group (with it’s subsidiaries) is also one of the largest suppliers of mobile corporate computing solutions. There are also people within it, that haven’t entirely given up the possibility of re-entering the consumer market (great previous re-defining R&D)!

And I know all that without ever having been a shareholder or employee of the company.

Yours kindly,

Shakir Razak

Tollie Williams

IMHO…

While it’s (perhaps, by far) the most reasonable defense I’ve heard over USPTO related claims, I think, as if often the case, the general vernacular has the better claim.

Just as the portmanteau of “iPod(R)” and “broadcasting” formed the natural word of podcasting, as a means of describing the action of broadcasting audio files primarily to iTunes for use on iPods, so does the “Notebook” and “Internet” form a reasonably natural and descriptive term – netbook – for small portable computers that primarily are used for accessing the internet.

Play-Doh(R) uses the unique spelling to distinguish their product from the general description of what it is (play dough).

On the other hand, Saran Wrap(R), made the mistake of attempting to trademark a term that is little more than self descriptive. Saran is (was) the material; wrap food is what it does. Now, saran wrap is understood as a term synonymous with plastic wrap.

… and so should be netbook – a generic term descriptive of small, lower powered notebooks primary best for internet access.

Ben

I don’t have a blog or site or anything, but I was under the impression that sites couldn’t really control the content of the ads; I thought the ad companies (like google, yahoo, etc) controlled that.

Mickey Segal

Going after third parties accepting ads from companies using the word Netbook is excessive and would give Psion a bad name (that is assuming people thought Psion was still in business).

Aqar

they are a dead brand with no clout, looking for cheap publicity & to make a quick buck. how long do you think it will be before they approach Intel looking for an offer to buy out their TM?

it’s no coincidence they waited this long to start sending out C&D letters.

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