Last week, Freedom Scientific, Inc. filed suit against Serotek Corporation
for trademark infringement with respect to the FreedomBox range of products.
Since then, the matter has been discussed at length on some
blindness-related blogs and e-mail lists. I'd like by way of this message to
clarify what I view as some of the objectives of the suit. I am a Vice
President at Freedom Scientific, and am extremely proud to work there.
However writing this message is my own initiative as a former technology
journalist. My aim in doing this is that people at least get a chance to
consider facts over rhetoric.
Firstly, let me talk a little about trademark law. A trademark's purpose is
to exclusively identify a source and origin of products. Importantly, a
trademark only applies to a certain range of goods or services. One of the
questions I have seen on e-mail lists is, "how can Freedom Scientific claim
to own the word Freedom." By taking this action, Freedom Scientific is not
seeking to do this. Rather, Freedom Scientific is simply enforcing the
Freedom Scientific trademark, which it owns for certain goods. Freedom
Scientific has invested to establish its trademarks and is only seeking to
enforce these valuable rights. Freedom Scientific has the legal right, and
the obligation to its customers and shareholders, to protect the use of its
trademark in the context of assistive technology. The concept of using
common words in trademarks is common – for example the use of the word Apple
to describe a computer company. As is well known through recent news
stories, Apple is quite entitled to own this name in the context of computer
hardware and software products. It does not, of course, mean that Apple has
any rights to the name when you eat a piece of fruit. Trademarks can
co-exist where there is no similarity between the businesses. For example,
Delta Airlines and Delta Faucets are trademarks, but there is no issue there
because the businesses' purposes are totally different and there is no room
for confusion. Freedom Scientific is confident that its trademark rights
will be upheld. The broadening of scope of the FreedomBox products to
include products like FreedomBox System Access (FBSA) offering access to
mainstream applications only exacerbates the infringement. Trademarks are
not some abstract thing. They are a company's reputation. They are legal
property, and you can't simply take someone's property without their
consent.
Secondly, I'd like to turn to the question, "why now." All sorts of bizarre
speculation have been put forward as to the timing of this suit. Freedom
Scientific made Serotek well aware of its position on this matter, but
unfortunately Serotek was unwilling to negotiate a settlement to this
matter. No one likes having to go to court, but if you genuinely believe
your property rights are being trampled upon, in the end there is no choice
but to do so if you are unable to get a resolution any other way.
Thirdly, it has been said that Freedom Scientific is giving the blind
community no credit by taking this action, and that everyone knows the
difference between the two product lines. Rest assured, this is most
certainly not the case. I can tell you that Freedom Scientific has been
contacted by Serotek customers seeking technical support, or even wanting to
buy a Serotek product. Thus, there is a likelihood of confusion.
Fourthly, a petition has been established by the hosts of ACB Radio's Main
Menu, calling itself the Save Serotek petition. The grossly misleading name
of this petition implies that somehow Freedom Scientific's objective is to
put Serotek out of business. As a result of the sensationalist name, many
commenters to the Petition have made comments to this effect. All Freedom
Scientific is seeking to do is protect its property and to seek appropriate
compensation for the unlawful use of it.
The objective here is not to put Serotek out of business. 2007 has already
seen great innovation from Freedom Scientific and there's plenty more to
come. Honest competition inspires excellence and is good news for the
customer. But I stress the word "honest." Yes, many people in assistive
technology are motivated by a strong sense of purpose and commitment to
making a difference. But these companies are still commercial entities, who
have every right to use the legal system to protect their property if they
think they need to, just as you have a right to use the legal system if
someone breaks into your house and takes something belonging to you.
In closing, I hope that those genuinely interested in the facts of this
matter will take the time to read up on trademark case law, but most
importantly, will let the judicial process take its course. It occurs to me
that if Freedom Scientific has got it as wrong as a few people claim, then
what do they have to fear? A jury will dismiss the case. I doubt that will
happen though. If the law has been broken as I believe it has, then Freedom
Scientific is quite entitled to redress.
My hope is that sanity prevails and that Serotek has both the courage and
the decency to brand its products in a fashion that wasn't already being
used in this industry. I think they would gain a lot of respect from the
blind community for acting honourably. Fair competition is not too much to
ask for, and it most certainly is worth fighting for.
Those interested in the subject of trademarks may like to take a look at the
Wikipedia entry on the subject, found at:
http://en.wikipedia.org/wiki/Trademark.
Jonathan Mosen
This is all well and good, but why has Freedom Scientific asked the court ot find an appropriate amount of money that Serotek has to pay and then tripple it? It looks like to me that freedom Scientific, frustrated that System Access is being deployed in government offices and with the release of RIM and RAM, so they decided to get rid of Serotek under the guise of a trademark violation lawsuit.
you don’t see gw micro sueing over ivocalize and thats much more of a blatant use of a product name that just having the word freedom in the name.
It’s interesting that Mr. Mosen is able to take his FS hat off to make comments on this situation however Darell and Jeff can’t take off the ACB Radio hat to do the same. Journalist? Who’s that? Maybe a guy that had some integrity at some point but decided to trade it in for a paycheck.
I am sure that he had to ask his handler if he could post here. If not he would be missing that paycheck he sold out everything for.
I would like to state my agreement with the comments above and particularly join in acerting that asking for tripple damages most certainly would seem to have the intent of putting Serotek out of business. Let’s put this in perspective. The wealthiest company in the industry demanding tripple damages from a company that anyone can figure out is a strategic shot at putting them out of business.
First of all, it is clear to anybody what the situation is here. Freedom Scientific wants Serotek gone from the industry. If they just wanted Serotek to stop using the Freedom Box name, they wouldn’t need to request triple in damages and certainly wouldn’t need a jury trial. How many sighted people do you know who really understand what exactly a screen reader does and how it operates? How many sighted people do you really know who don’t have an exaggerated view of what it is to be blind? “Of course, those blind people would be confused by the name, poor blind people Serotek should know better.” Only a jury of sighted people would believe their story. With the recent Verizon suit and Microsoft trying to go after the open source community, I’m not surprised that Freedom Scientific would take this action.
People like me, who are appalled at Freedom Scientific for this action need to do more than post on blogs and online petitions. We need to get together in Florida and bring media attention to this story. We need to show sighted people that we are capable of discerning between the name of a company and the name of another company’s product. I say that people get together and stand up to what is going on. 275 signatures on an online petition means nothing. It hasn’t grown large enough to be picked up by the mainstream media and that is what is needed here.
Jeff’s comments on his blog, in my opinion are way off, it is so clear that Freedom Scientific is trying to remove Serotek from the market. That is how they handle their competition, by removing them from the market place. They don’t try to make a better product, work with industry leaders to make their products compatible. Their News articles describe how their products do this or that better than their competition, and in some cases it’s just not true.
Again, we need to get together, and show the mainstream media that we’re serious. We need to get together and say to Freedom Scientific that their wrong. We need to stand outside the courthouse during the trial and we need to raise money for Serotek’s legal fees. Freedom Scientific has a good solid screen reader, no one can argue with that. They could be a driving force in innovation in the AT industry but instead we have this pointless litigation. I can’t tell you how angered I am at Freedom Scientific. Unfortunately, they’ll go on doing what they want, because the blindness community is pathetic at joining together on an issue. Look at the different blindness advocacy groups. We need to stand together on this issue, we need to get this in to the mainstream media so that people Freedom Scientific cares about, and that’s not us, the users of their technologies. Why should they care about us, governments and corporations are the largest purchasers of their products. If the average consumer represented a sizable percentage of their sales, they would have their own lease to own program, or monthly payment plan like GW. I’ve never given Window Eyes a chance, but the more I learn about GW and Serotek, the more I’m considering the switch and the complete removal of JAWS and Freedom Scientific software from my system. We need to rally around Blind Access Journal and other blogs and drive this through to the mainstream media.
I think Mr. Mosen should do a bitt more investigative journalism before he posts examples of copyrights and trademarks. His example of Apple is not a good one as this company did compete in the same space as the Beatles Apple Core. As part of the law suit between the two Apples years ago it was agreed that Apple Computer could keep their name and brand since the two companies did not compete in the same space. When iTUNES was created Apple Cores did take Apple Computer back to court stating that Apple was now competing in the space of distribution and sale of music and products relating to music. The result was that Apple Computer dropped the “Computer” and that the company had to make some other consessions to the other Apple. My point is that both companies now compete in the same space with the same names. There is no brand confusion and there is no misunderstanding as both companies have established brand identities over many years in the open market.
While I agree that a company must defend what it owns I also wonder why it took so long for the company in question to move on a suit? To maintain your trademarks you must defend them against anyone no matter how small the actual challenge is to your company’s identity. But waiting years before challenging that claim in open court shows that you did not feel that this was a threat. While I can not prove that Freedom Scientific approached others in the past for more or less the same or similar brand confusion trademark threat the question still remains why so long of a period of time before the formal challenge?
And I think an even better thing to notice is why so many people, including this post, are using the “Anonymous” tag? If anything the situation with Jeff, Daryl and the petition has shown others in the field of Assistive Technology that voicing your own opinions will have you in the cross hairs of a multi million dollar company’s dirty political spin machine. Where is the “Freedom” in all of that? Can not the users of your products voice their concerns on what we feel is a counter productive effort in what your mission statement is to the industry at large? Or are we to now extend the “evil empire” moniker to others?
And on that note I have to go call GW Micro about a problem I am having with *Window* Eyes. No wait I get those two computer programs confused all the time. Which one is owned by Microsoft again XP or the other computer program? Better yet I will be representing the estate of Louie Braille in my upcoming law suit for the use of the term Braille when openly marketing the device known as the Braille Lite. Wish me luck. I hear this company has deep pockets.
Daryl,
This applies-
http://www.betanews.com/article/Novell_CTO_Lets_Make_Patents_a_NonIssue/1179961252
Interesting thoughts, but one thing to consider is the universal reaction of revulsion to this suit. This decision to sue has a palpable toxic effect, and Mosen’s carefully laid out rationale is like a mother in denial explaining away a destructive child’s temper tantrum.
Sorry, but the basis of the suit is folly, and the timing couldn’t be a worse reflection on the new FS “investors”.
This suit sends many messages, but none I am afraid, are good.
I’ve been sickened by the ranting on blindness lists this week. While I used to get sick of some of the political opinions Jonathan used to express on his Blog, he’s entitled to express his opinion without snide personal attacks. Why not debate the issue rather than kick the man?
Mr. Bishop, someone who used to have a lot of integrity in this community, wants us to believe he’s not taking sides. yeah right. How come then the petition doesn’t ask for both parties to get around the table and work out their differences for the good of all of us? If you’d worded it like that, I’d’ve signed it in the heartbeat.
I’m a Christian, and I’m a conservative. Thou shalt not steal is a pretty important commandment to me. Freedom Scientific is entitled to try and stop stealing if they think that’s what’s happening, and no matter how big a corporation they are. If they’re wrong, I’ll bet the judge and jury end up making them pay the big damages to Serotek. So Serotek could end up pretty rich out of this if they’re sure of their facts. But if they’re wrong, then just cos they’re the little guy doesn’t mean they have the right to use what doesn’t belong to them. Shame on the organizers of this petition for wording it so that it generates conflict and takes sides when they could’ve promoted getting the two together to sort it out. But that wouldn’t have generated as many hits which is what this is really about.
All comments to this blog are moderated to prevent spam and other potentially abusive language. They are not otherwise censored in any way. That is why I have just explicitly approved the most recent comment, despite its negativity to our cause.
The petition only asks that Freedom Scientific stop the lawsuit. That is all! The domain name used may indicate the potential result if Freedom Scientific wins everything for which they are asking. The petition states absolutely nothing else. Nothing at all. A lot of assumptions have been made about the petition. Virtually all are wrong. The petition statement speaks for itself. Anything else others might say is just assumption. Visit http://www.saveserotek.org and read the actual petition statement. Please read the statement rather than all the incorrect assumptions that have been made.
I think Jonathan Mosen’s message is pathetic. I could say much more, but I don’t want to lose ground by throwing mud. Take it from one who chose to resign from Freedom Scientific rather then intentionally deceiving my blind friends and customers, this company is not worthy of your patronage.
I voted with my career and I now urge every Freedom customer to vote with your dollars. Besides, Window-Eyes is a much better screen reader then JFW; and many who are more objective then I have stated that the PAC Mate is a tremendous disappointment.
If we vote with our dollars, Freedom Scientific will lose even if they win this ridiculous monopolistic suit.