RE: Thoughts on Freedom Scientific V Serotek

  • From: "Dennis Bartlett" <dennis.bartlett@xxxxxxxxxx>
  • To: <jfw@xxxxxxxxxxxxx>
  • Date: Tue, 22 May 2007 18:33:06 -0600

Does this mean that Freedom Scientific will go after  other companies using
Freedom in their name?  The one that comes to mind is Freedom of Speech, an
access technology vendor in Minnesota.


-----Original Message-----
From: jfw-bounce@xxxxxxxxxxxxx [mailto:jfw-bounce@xxxxxxxxxxxxx] On Behalf
Of Jonathan Mosen
Sent: Tuesday, May 22, 2007 3:52 PM
To: jfw@xxxxxxxxxxxxx
Subject: Thoughts on Freedom Scientific V Serotek

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

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