13 February 2009

Cloud Computing Doghouse Updates (Incoming): Psion / Netbook trademark

Many of you will remember Psion from their heydey of making PDAs and other consumer devices and will be surprised to see them being discussed in the context of cloud computing. I've already explained what the netbook class of laptops is before and why 2009 will be the year of the enterprise netbook. Basically these are laptops that are optimised for the Internet, not bloated operating systems running heavyweight local applications. They have just enough resources for that task and as a result are significantly cheaper and (having dispensed with many of the moving parts) are far more reliable. They run cooler and longer and are both economically and ecologically friendly (think $300-400 each and 5-10 year lifetime, or a couple of bucks a month). Sounds too good to be true? Well if Psion have their way, it will be (at least under the 'netbook' moniker to which we are all accustomed).

You see the thing is that a bunch of years ago Psion somehow managed to obtain trademarks (including US trademark #75215401 and EU Community Trademark #000428250) for the term 'netbook' which it used on a line of products abandoned over 5 years ago. While the trademark probably should have been rejected outright for being 'merely descriptive' (e.g. a network enabled notebook), it wasn't and managed to proceed to registration and extension into other territories.

Despite significant generic usage of the term over the last year or two (sufficient that the vast majority of us don't think 'Psion' when we hear 'netbook'), just before christmas last year Psion's lawyers sent out a bunch of cease and desist letters (like this one) - not only to vendors but also to bloggers! They later clarified that they were only going after those "profiteering" from the term while conceding that "the extent of use has not been that great" (they have just been "supplying ‘Netbook’ accessories and also providing maintenance and support to existing ‘Netbook’ users").

To our surprise the USPTO enforced it as recently as last month in denying at least 3 other marks (here, here and here) containing the term 'Netbook' citing 'confusing simularity' with Psion's existing registered trademark. Google only last week banned ads containing the term as well. Too bad for Dell, HP and anyone else with a 'netbook' line. Ultimately though it will be the consumer who suffers if Psion continue on this perplexing crusade. They still lack a netbook offering (even if they are scrambling to build one) and while their Symbian/ARM based product was quite revolutionary, it would not have been the first time a product failed because it was ahead of its time.

See trademarks are designed to give a legal monopoly such that an owner can build up a brand and prevent others from releasing similar products with the same identifying features. They're essential for many businesses and generally good for consumers too - you know what you're getting when you buy a can of Coke® but couldn't be so sure were it not for trademark protection. In this case though the term 'netbook' grew organically and independently of Psion's largely unsuccessful product (sufficiently so that it has been long since abandoned). Their choosing to wait until now to enforce the trademark rather than stamp it out when it first appeared (in which case we would have just found some other term) is damaging to the segment, damaging to the users and damaging to cloud computing itself.

That's why they're taking over from Dell in the cloud computing doghouse and will stay there until such time as they win (which would be a travesty of grand proportions) or the trademark is invalidated as descriptive and/or generic. If any vendors want to take on this fight then I'd be more than happy to provide an expert opinion, and I'm sure I'm not alone. To those of you who think Psion is playing fair, guess again - they had their chance and missed it by a full 5 years. If they want to get in the game now and compete on a level playing field then they are more than welcome, but resorting to the trademark equivalent of a 'submarine patent' is (in my opinion at least) playing dirty pool.

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