While Microsoft lawyers carry out a high profile battle with the Justice Department and state attorneys general, the company is facing another legal challenge to their business practices in an improbable arena: San Francisco small claims court. That is where entrepreneur Ken Belanger brought his copyright and trademark infringement suit in a gambit to avoid the hefty costs of going head-to-head against Microsoft lawyers. California does not permit parties to be represented by counsel in small claims courts. Microsoft used its one opportunity to postpone the hearing, which took place April 2, 2002.
Belanger has been using the name “Pocket PC” since 1985 for a gag gift he sells consisting of a handheld wooden crate containing two poker chips and an owner’s manual. Although he never registered the name, he claims ownership of it under common law and has consistently designated the name as both a trademark and a copyright. Belanger is suing to recover the maximum $5,000 allowed under small claims rules because he believes Microsoft’s use of the domain name has cost him at least that much in web-based sales.
Due to the popularity of Microsoft’s operating system for handheld computers, web search engines return hundreds of thousands of links to pages discussing the system when one searches for “Pocket PC”. While links to Belanger’s web site also come up, they are so hidden in the deluge of results that anyone interested in purchasing Belanger’s product would be unlikely to find them. Belanger hopes a win will give him the proof he needs to wrest control of www.pocketpc.com away from Microsoft so he can use it to sell his product.
This is not the first time Microsoft has faced a legal challenge to their operating system’s name. In 2001, Microsoft prevailed over another entrepreneur, Jeffrey Etter. Etter’s late father, Berwyn, had registered the “Pocket PC” trademark in 1986 and renewed it in 1992. The Etters had been selling handheld computers under the name. Etter discontinued his defense of the trademark when it became too costly.
Although Microsoft does not claim ownership of the name, it argues that it is a generic term for pocket-sized handheld computers. Microsoft began using it in January, 2000 as a replacement for “Palm PC,” which faced a challenge from 3Com who was then selling the competing Palm OS operating system.
To represent it in small claims court, Microsoft sent Marianne Petersen, a paralegal from their Redmond, Washington headquarters, to the hearing armed with a binder of evidence supporting its generic term argument. Belanger agreed to drop the trademark claim, but maintained his copyright claim. Commissioner Sue Kaplan suggested that Federal courts have exclusive jurisdiction over copyright claims, but said she would issue a decision by mid-April.
RELATED LINKS:
Trademark Office information on Etter's PocketPC trademark
ICANN's Uniform Dispute Resolution Policy
