20 February 2009

Conspiracy theories about Intel's role in the "netbook" craze

The last few days working on Save the Netbooks have been enlightening to say the least. It's surprising that something as mundane as a moniker for a generic class of laptops can be an outlet for the conspiracy theorists, but Mark "Sumocat" Sumimoto (the "Father of Ink Blogging" - which is interesting in itself) at least has got it in his head that Intel created the "netbook" moniker as "part of a move to undercut the OLPC project's goal of supplying laptops to children in third-world countries".

To his credit (and unlike most conspiracy theorists), Sumocat presents detailed (if flawed) arguments along with his claims like the Google Trends data on "netbook" usage. This correlates well with things like the February 2008 Bloomberg article where an Intel marketing drone gushed about their plans for "netbooks" that ran through CEO level, followed immediately by a fairly candid blog post which spoke about netbooks generically as a category rather than an Intel product. It predates, however, their full involvement later in the year through with things like the registration of netbook.com. Remember that Psion Teklogix waited until December before unleashing the hounds.
The theory culminates in a post entitled "How to Kill a Trademark" which focuses on prior use of the term "netbook" and suggests that if you "wield enough power [you] can bypass trademark protection", as per Intel's "deliberate campaign to genericize another entity's trademarked name". The fatal flaw with this theory is that a trademark requires continuous use and this one had been abandoned, both instantaneously and indefinitely by way of the End-of-Life notice (meaning "vendor will no longer be marketing, selling, or promoting a particular product") and for longer than the 3 year limit on non-use.
Were the trademark still in use and had they acted in a reasonable period then it is very likely that Intel (and pretty much everyone else using the term) would have found themselves in a good deal of trouble. Even the smallest firm with a valid, in-use trademark could have enforced this given the probability of success (lawyers will take on this sort of a fight if there's a virtually guaranteed payout at the end). However had Psion made a stink earlier in the year they likely would have been attacked by someone like Dell on the basis of abandonment then rather than now. There are similarities here with the Cisco/Apple settlement over the iPhone trademark.
Note that the "reasonable period" is perhaps open to debate but what is sure is that it's shorter now in the days of the Internet than it was when the propagation rate of the mediums were slower (print, then radio, then television, now Internet). In the age of Twitter the entire lifecycle of a product can take place in the time it takes to even register a trademark and there are many things that can be done to modernise the rickety old trademark system. We're doing our bit in that we're working on surfacing "submarine" trademarks but this is just the beginning.
At the end of all this though, it simply doesn't matter. Intel may have thought they were clever by getting behind these new devices (and only they know their real motives with respect to OLPC), but to assume they could link entangle "netbook" with "atom" (so to speak) was perhaps a bit ambitious, if not downright dangerous. The same applies to Microsoft who tried valiantly to keep the netbooks in the UMPC/ULCPC box with arbitrary restrictions on things like screen size at a measly and arbitrary 10 inches.
I've been saying the whole time that "netbooks" are "Internet Notebooks". Given one of the key features for Internet productivity is screen size I am not at all surprised then to see the availability of full size netbooks out to 13.4" already, and manufacturers like Acer (just yesterday) pulling out of the sub-10" marketplace altogether. I'm also not surprised to see alternatives processors (most notably ARM based units like the Freescale) gearing up to take over the lion's share of sales by being cheaper and more energy efficient.
Just as Microsoft introduced the XMLHTTPRequest object which ultimately led to a thriving marketplace of web based cloud computing applications (e.g. Google Apps), Intel has unleashed a monster that could well devour a large part of its revenue. It will be almost impossible for the WinTel alliance to match the new breed of competitors (at least in their current form of Windows 7 Starter on Intel Atom) so they'll want to start thinking outside the box (like Windows Mobile 8 on XScale, except that they already sold it to focus on x86). Meanwhile AMD sees no future for [itself in] netbooks so the new kids on the block like Ubuntu Linux on Freescale currently have nothing to fear from the old school, let alone the infamous trademark.

5 comments:

  1. Thanks for the counterpoint, but whether the trademark is in active use for Psion to prove (or not) when they answer the second basis of Dell's petition. This, to me, is the make or break point for them, but this does not have any bearing on the third basis of genericness.

    That said, it has been pointed out to me that the Psion Netbook trademark is currently in active use.

    Via Save the Netbooks: http://blog.savethenetbooks.com/2009/02/newsflash-psion-action-damages-hurting.html
    Source: http://www.pulster.de/

    Remember, active use does not mean producing new units. Psion just needs to prove they've been dealing with resellers and customers using the trademarked name.

    Also, the end-of-life notice to which you link only shows that Psion discontinued their Netbook. It does not make mention of their Netbook Pro, which replaced the discontinued model. Whether sticking "Pro" after the original trademarked name makes it a new name is another argument.

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  2. I too wouldn't mind knowing how these guys get their hands on Netbook Pros "Neuware mit 2 Jahren Garantie, kompletter Lieferumfang, original verpackt, frisch ab Werk !", or indeed the Netbook itself, but I would suggest that if the product was discontinued it was because they weren't selling... they likely had stock left over or bought it at a discount when the product was dropped. In any case Psion whould have to show that they've been shipping new units, if not still *producing* them.

    We've treated the Netbook Pro specifically here: Is the Netbook Pro a fly in the ointment?

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  3. "We?" So you are part of STN? See, I don't know how I get tagged as a conspiracy theorist when I don't assume such connections without evidence or admittance.

    Truthfully, I'm a bit surprised you're with them given how rational you appear relative to the "throw s*** on the wall" approach at STN. I mean, that Psion Netbook reseller potentially kills your case, and you guys link to it? Not the smartest move, and quite frankly, you need to be much smarter than what you've presented.

    Your fraud argument is seated on very narrow interpretations. "Use" does not necessarily mean shipping new units. Discontinuing a product does not equate with discontinuing use of its trademark. And proving intent just means showing a plan, fulfilled or not. You think Psion can't argue any of those points? Okay, but don't say nobody spotted where they could (and should) attack.

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  4. I have no interest in concealing facts and would rather as much information as possible were available for the TTAB decision (whether good or bad for the case).

    I do feel for Psion having been so far ahead only to see others successful with inferior devices, but at this stage their losses are miniscule in comparison to what the rest of the industry stands to lose and to enforce their trademark would do exactly the opposite of what is intended: users buying a "netbook" expecting something like an Eee PC will get something different entirely (better, but far more expensive).

    A good analogy I saw used in one of the many threads was a toddler putting a toy back in the box only to throw a tantrum when another kid starts playing with it.

    I'm actually not convinced that Psion will fight this... they haven't said 'boo' since it all kicked off (STN included) and there is always the possibility that they will announce a product and forget about the TM. I do think that Dell will do a much better job of building the case than STN ever could have and if Psion do decide to put up a fight then I reckon they'll have their work cut out.

    Anyway it's been an interesting debate so far. I'm a tech guy but have a strong interest in the area where the tech and legal industries mesh (some would say grind) together.

    Sam

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  5. That's a good attitude, Sam, and I have good news for you. The Wayback Machine pegs the last listing of the netBook Pro on Psion's website in July 2006, so using the argument presented on STN, Psion's claim on the trademark could expire as early as this summer. Again though, we don't know when they actually stopped shipping the product, but there appears to be a distinct end to the advertising and use of the trademark on their website.

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