Newsflash: Intel counter-sued by Psion in "netbook" trademark lawsuit; jury trial demanded

The Save the Netbooks campaign has just secured court documents (PDF) filed Friday by Psion in response to Intel's suit against them in which they systematically deny Intel's claims against them and countersue on the basis of:

1. Trademark Infringement Under The Lanham Act
2. Unfair Competition Under The Lanham Act
3. Common Law Unfair Competition
4. State Law Unfair Competition
5. Unjust Enrichment
6. Anti-Cybersquatting Consumer Protection Act
   

In their prayer for relief they give a laundry list of demands:

1. A judgment that Intel’s actions have violated and continue to violate the rights of Psion
2. That the Court order the domain name transferred from Intel to Psion.
3. That injoins Intel and "all those persons in active concert or participation" from:
   
   • Using the term netbook "in connection with the promotion, advertising or offering in connection with the Intel’s products and service"
   • Or "any trademark, service mark, name, logo or source designation of any kind that is confusingly similar to the NETBOOK mark"
   • "Otherwise competing unfairly with Plaintiff in any manner"
   • "Conspiring with, aiding, assisting or abetting any other person or business entity in engaging in or performing any of the[se] activities"
4. Intel and "all those persons in active concert or participation with any of them, including, but not limited to, Intel’s licensees" to "deliver up for destruction, or show proof of destruction of, any and all products, labels, signs, prints, packages, wrappers, receptacles and advertisements, and any other materials in their possession or control, that depict the names or marks “NETBOOK” or any other mark confusingly or substantially similar to the NETBOOK mark, and any materials or articles used for making or reproducing the same"
5. A report within 30 days in writing "and under oath setting forth in detail the manner and form in which Intel has complied with the injunction"
6. "All damages it has sustained as a result of Intel’s infringement, unfair competition, unfair trade practices and unjust enrichment"
7. For "damages awarded to Psion be trebled"
8. "That an accounting be directed to determine Intel’s profits resulting from its infringement, unfair competition and unfair trade practices, and that such profits be paid over to Psion, increased as the Court finds to be just and proper under the circumstances of this case"
9. "That the Court declare that this is an exceptional case and award Psion its reasonable attorneys’ fees for prosecuting this action"
10. "Punitive damages in such amount as the Court finds arises from the willful acts of common law unfair competition"
11. "Costs of this action and prejudgment and post-judgment interest"
12. "Such other and further relief as the Court may deem just and proper"
    

Finally, Psion "respectfully demands a trial by jury on all issues triable by right to a jury".

Some of their defenses include that:

• Google is not the only provider of Internet advertising (technically true but is that the case in practice?)
• They sell, and continue to sell even into 2009 the "netBook pro" (giving 2009 YTD sales of $13,650 and 2008 sales of $60,900 - a drop in the multi-billion dollar industry ocean)
  
• They advertised the netBook line at psionteklogix.com "as well as through its direct sales force; newspaper, magazine and trade journal advertisements; and trade show exhibits"
• "The NETBOOK mark is inherently distinctive", is "recognized by the relevant consuming public as being sponsored by, approved by, authorized by, associated with or affiliated with Psion", and "has become a valuable asset of Psion" (all of which are debateable)
  
• "Intel willfully and maliciously has encouraged, aided and abetted other manufacturers and retailers in the electronics industry to adopt and use the term NETBOOK as a generic name for a type of laptop computer in an effort to destroy Psion’s trademark rights."
• "Use by Intel of the designation NETBOOK has caused and is now causing severe and irreparable harm to Psion, to the value of its NETBOOK mark, and to the goodwill associated therewith."
• "Intel has acted willfully and maliciously, has unlawfully attempted to trade on the tremendous commercial value, reputation and goodwill of the NETBOOK mark, and has deliberately and intentionally confused and deceived the public as to an affiliation, connection or association of Intel with Psion, and/or as to the origin, sponsorship or approval of Intel’s goods and/or services."
• "Intel has been and continues to be unjustly enriched at the expense of Psion by Intel’s unauthorized use of the infringing mark."
  

They also provide this rather interesting table of "retail sales" totaling $5,357,034 over 11 years, or less than $500,000 per year on average:

Year	Sales (USD)
1999		$62,800
2000		$7,874
2001		$7,335
2002		$30,566
2003		$24,503
2004		$780,096
2005		$1,709,433
2006		$2,073,207
2007		$586,680
2008		$60,900
2009		$13,640

Assuming around 15,000,000 netbooks were sold in 2008 at a conservative $200 per unit (and that our calculations are correct) Psion had a "netbook" market share of two thousandths of one percent in 2008 - rather low for a company claiming to hold a monopoly over the mark.

In other news, Save the Netbooks (a grassroots campaign formed to defend the impending netbook trademark threat - for more see the launch press release) has just reached the 200 member milestone! Thanks to all of you for spreading the word. Keep up the good work!

Update: According to Domain Name Wire the Anticybersquatting Consumer Protection Act claim has teeth to the tune of $100,000. In fact "if the court finds that the registration or use of the registered trademark as an identifier was willful" then that too is trebled to $300,000. Ouch. As they say "This will be an interesting case to watch. It’s not everyday you see a Fortune 500 company alleged to be cybersquatting."

Update: Welcome Slashdotters!

Psion Accuses Intel of Cybersquatting
We discussed Psion sending C&Ds late last year over international trademarks held on the term 'netbook' and Dell accusing Psion of fraud last week. Since then Intel has joined in by suing Psion in federal court. On Friday Psion counter-sued Intel (court filing, PDF). SaveTheNetbooks.com has an analysis here. Psion has demanded a jury trial, profits, treble damages, destruction of material bearing the mark 'netbook' and the netbook.com domain (among other things), claiming that they are still actively selling netbooks despite also revealing sales figures showing a minuscule market share. It seems that declaring victory may have been a little premature as it will be months before the dispute plays out in court.