[gui-talk] Fwd: Info about Freedom Scientific suit against SEROTEK (fwd)

[David Andrews]

>Date: Wed, 23 May 2007 13:23:17 -0400 (EDT)
>From: Jamal Mazrui <empower at smart.net>
>---------- Forwarded message ----------
>Date: Wed, 23 May 2007 12:52:03 -0400 (EDT)
>From: Jamal Mazrui <empower at smart.net>
>Reply-To: programming at blindprogramming.com
>To: programming at blindprogramming.com, program-l at freelists.org,
>     guispeak at freelists.org
>Subject: Info about Freedom Scientific suit against SEROTEK
>
>I believe this issue is important enough to the world of blind computer
>users and programmers that I am posting information about it.  Posts about
>legal or business developments with significant ramifications for us have
>been accepted, so I hope that is the case here.  A legal filing is
>included because it was hard to obtain in accessible form.  Given the
>length of this message, please delete the original if you reply.
>
>Essentially, Freedom Scientific has sued SEROTEK for using the name
>"Freedom Box," arguing that this violates a trademark and confuses
>potential customers about the origin of the product.  There are only a
>handful of viable screen reader companies at present, and even fewer that
>support Windows Vista -- expected to become the dominant GUI platform
>because of Microsoft's market strength.  What is fair competition in the
>assistive technology field?  Become informed and make your voice heard in
>one way or another.
>
>The "Save Serotek Petition" is at
>http://saveSEROTEK.org
>
>A rebuttal by Jonathan Mosen is pasted below.  Following that is the legal
>filing in question.
>
>Regards,
>Jamal
>
>----------
>
>[Forwarded Message by Jonathan Mosen]
>
>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
><http://en.wikipedia.org/wiki/Trademark>
>.
>
>Jonathan Mosen
>
>
>----------
>
>[Text version of Legal Filing]
>
>UNITED STATES DISTRICT COURT
>
>MIDDLE DISTRICT OF FLORIDA
>
>TAMPA DIVISION
>
>FREEDOM SCIENTIFIC, INC., a Delaware corporation,
>
>Plaintiff,
>
>-vs-
>
>SEROTEK CORPORATION, a Minnesota corporation,
>
>Defendant.
>
>CASE NO.
>
>COMPLAINT FOR DAMAGES DEMAND FOR JURY TRIAL
>
>Plaintiff Freedom Scientific, Inc. (the "Plaintiff) sues Defendant Serotek
>
>Corporation (the "Defendant"), and alleges:
>
>I. PARTIES, JURISDICTION AND VENUE
>
>1. This is an action for trademark infringement against Defendant for:
>(a) infringement of a federally registered mark under 15 U.S.C. Section
>1114(1); (b) infringement of a common law trademark; and (c) unfair
>competition under 15 U.S.C. Section 1125. The Court has jurisdiction over
>this action under 15 U.S.C. Section 1121 and 28 U.S.C. Section 1338(a).
>
>2. The Plaintiff is a Delaware corporation with its principal place of
>business at 11800 31st Court North, in St. Petersburg, Florida 33716.
>
>3. The Defendant is a Minnesota corporation, with an address of 2400 IDS
>Center, Minneapolis, RUN 55402 and is doing business in the Middle
>District of Florida.
>
>The Defendant is selling and offering for sale and advertising products
>under a name that infringes the Plaintiffs federally-registered trademark
>and has caused those products to be distributed in the Middle District of
>Florida with the designation and representation connection wherewith,
>which use is a false designation of origin. The Defendant is accordingly
>subject to the personal jurisdiction of this Court and this litigation
>arises out of or relates to the substantial contacts the Defendant has
>with this state and district.
>
>4. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C.
>Sections 1391(b)(2) and 1391(c) because the Defendant is subject to
>personal jurisdiction in the Middle District of Florida and therefore is
>deemed to reside here for venue purposes, and a substantial part of the
>events or omissions giving rise to the claims herein occurred in the
>Middle District of Florida.
>
>II. COMMON ALLEGATIONS
>
>5. Beginning on May 15, 2000, the Plaintiff adopted the mark "Freedom
>Scientific" and shortly thereafter used it in interstate commerce for the
>sale of certain products tailored to blind and low-vision users, including
>software that translates the Internet and digital information into Braille
>or audible synthesized speech.
>
>6. On April 25, 2000, the Plaintiff filed an application for registration
>of said mark in the United States Patent and Trademark Office.
>
>7. On December 18, 2001, said mark was registered in the United States
>Patent and Trademark Office on the Principal Register under the Act of
>1946 covering the use of said mark with the sale of certain products
>tailored to blind and low-vision users, including software that translates
>the Internet and digital information into Braille or
>
>-2-
>
>audible synthesized speech. A true and correct copy of the registration is
>attached hereto as Exhibit "A." Said registration is now outstanding and
>valid.
>
>8. The Plaintiff has filed with the United States Patent and Trademark
>Office an affidavit of use of said mark as required by 15 U.S.C. Section
>1058(a), and said registration is presently valid.
>
>9. The validity of the registered mark and of the registration of the
>mark, registrant's ownership of the mark, and the Plaintiffs exclusive
>right to use said registered mark in commerce for the above mentioned
>goods are incontestable under 15 U.S.C. Section 1065 and 15 U.S.C.
>Section 1115(b), as the Plaintiff has filed the required affidavit with
>the Commissioner of Patents and Trademarks.
>
>10. Continuously since May 15, 2000, the Plaintiff has used the mark
>"Freedom Scientific" to identify its products tailored to blind and
>low-vision users, including software that translates the Internet and
>digital information into Braille or audible synthesized speech, and to
>distinguish these products from those made or sold by others, by, among
>other things, prominently displaying the mark "Freedom Scientific" on the
>products, their containers, the displays, and marketing associated
>therewith. In addition, the Plaintiff has prominently displayed said mark
>on store fronts, letter heads, bills, direct mailing advertising,
>telephone directly advertising, and in periodicals distributed throughout
>the United States.
>
>11. The Defendant has infringed the Plaintiffs trademark in interstate
>commerce by various acts, including by selling, and offering for sale, an
>entire line of products tailored to blind and low-vision users, including
>software that translates the Internet and
>
>-3-
>
>digital information into Braille or audible synthesized speech, and
>advertising these products, under the name and mark "Freedom Box." Said
>use of said name and mark by the Defendant is without permission or
>authority of the Plaintiff and said use by the Defendant is likely to
>cause confusion, to cause mistake, and to deceive. In fact, said use by
>the Defendant has caused actual confusion, mistake, and deception.
>
>12. All conditions precedent to this action have occurred or have been
>waived by the Defendant.
>
>COUNT I-TRADEMARK INFRINGEMENT
>
>13. Plaintiff repeats and realleges the allegations set forth in
>Paragraphs 1-12.
>
>14. The Defendant's heretofore alleged acts of trademark infringement have
>been committed with the intent to cause confusion, mistake, and to
>deceive.
>
>15. Since on or about December 18, 2001, the Plaintiff has given notice
>that its mark is registered in the United States Patent and Trademark
>Office by displaying the mark as used with the letter R enclosed within a
>circle. The Plaintiff has requested the Defendant to cease and desist from
>its acts of trademark infringement and has given the Defendant actual
>notice of the Plaintiffs registration, but the Defendant has refused to
>cease such acts.
>
>16. By reason of the Defendant's acts herein, the Plaintiff has and will
>suffer damage to its business, reputation, and good will, and the loss of
>sales the Plaintiff would have made but for the Defendant's acts.
>
>17. The Defendant threatens to continue to do the actions complained of
>herein, and unless restrained and enjoined, will continue to do so, all to
>the Plaintiffs irreparable
>
>-4-
>
>damage. It would be difficult to ascertain the amount of compensation
>which could afford the Plaintiff adequate relief for such continuing acts,
>and a multiplicity of judicial proceedings would be required. The
>Plaintiffs remedy at law is not adequate to compensate it for the injuries
>threatened. WHEREFORE the Plaintiff prays:
>
>(a) That this Court grant a permanent injunction pursuant to the powers
>granted it under 15 U.S.C. Section 1116, enjoining and restraining the
>Defendant and its agents, servants, and employees from directly or
>indirectly using the name "Freedom Box" or any other mark, word, or name
>similar to the Plaintiffs mark which is likely to cause confusion,
>mistake, or to deceive;
>
>(b) That this Court, pursuant to the powers granted it under 15 U.S.C.
>Section 1118, order that all labels, signs, prints, packages, wrappers,
>receptacles, and advertisements and other materials in the possession of
>the Defendant bearing the mark "Freedom Box" and all plates, molds,
>matrices, and other means of making the same, shall be delivered up and
>destroyed;
>
>(c) That this Court award the Plaintiff treble the amount of actual
>damages suffered by the Plaintiff;
>
>(d) That the costs of this action be awarded to the Plaintiff;
>
>(e) That this is an exceptional case and that the Plaintiff be awarded its
>reasonable attorneys' fees; and
>
>(f) That this Court grant such other and further relief as it shall deem
>just.
>
>-5-
>
>COUNT II - COMMON LAW TRADEMARK INFRINGEMENT
>
>18. Plaintiff repeats and realleges the allegations set forth in
>Paragraphs 1-12.
>
>19. Plaintiff has generated common law trademark rights through the
>continuous use and adoption of the mark "Freedom Scientific" to identify
>products tailored to blind and low-vision users, including software that
>translates the Internet and digital information into Braille or audible
>synthesized speech.
>
>20. Plaintiff uses the "Freedom Scientific" mark to distinguish its
>products from those made or sold by others, by, among other things,
>prominently displaying the mark "Freedom Scientific" on the products,
>their containers, the displays, and marketing associated therewith. In
>addition, the Plaintiff has prominently displayed said mark on store
>fronts, letter heads, bills, direct mailing advertising, telephone
>directly advertising, and in periodicals distributed both inside and
>outside the State of Florida.
>
>21. In competition with Plaintiff and in the same trade area, Defendant's
>use of "Freedom Box" has occurred in a manner this is likely to cause
>confusion as to the source of the goods among a significant number of
>persons using ordinary care and prudence in the purchase of goods.
>
>22. The infringing acts of Defendant, as heretofore alleged, have been
>without the consent of Plaintiff.
>
>WHEREFORE the Plaintiff prays:
>
>-6-
>
>(a) That this Court grant an injunction enjoining and restraining the
>Defendant and its agents, servants, and employees from directly or
>indirectly using the name "Freedom Box" or any other mark, word, or name
>similar to the Plaintiffs mark which is likely to cause confusion,
>mistake, or to deceive;
>
>(b) That this Court order that all labels, signs, prints, packages,
>wrappers, receptacles, and advertisements and other materials in the
>possession of the Defendant bearing the mark "Freedom Box" and all plates,
>molds, matrices, and other means of making the same, shall be delivered up
>and destroyed;
>
>(c) That the costs of this action be awarded to the Plaintiff;
>
>(d) That Plaintiff be awarded its
>reasonable attorneys' fees; and
>
>(e) That this Court grant such other and further relief as it shall deem
>just.
>
>COUNT III-FALSE DESIGNATION OF ORIGIN UNDER THE LANHAM ACT
>
>23. Plaintiff repeats and realleges the allegations set forth in
>Paragraphs 1-12.
>
>24. The Defendant has caused goods to enter into interstate commerce with
>the designation and representation "Freedom Box" connected therewith. Said
>use of "Freedom Box" is a false designation of origin which is likely to
>cause confusion, to cause mistake and to deceive as to the affiliation,
>connection, or association of the Defendant with the Plaintiff as to the
>origin, sponsorship, or approval of such goods by the Plaintiff.
>
>25. In fact, said use by the Defendant has caused actual confusion,
>mistake, and deception. These acts are in violation of 15 U.S.C. Section
>1125(a), in that the Defendant
>
>-7-
>
>has used in connection with goods a false designation of origin, a false
>or misleading description and representation of fact which is likely to
>cause confusion, and to cause mistake, and to deceive as to the
>affiliation, connection, or association of the Defendant with the
>Plaintiff and as to the origin, sponsorship, and approval of the
>Defendant's goods and commercial activities by the Plaintiff. Said use by
>the Defendant has caused actual confusion, mistake, and deception.
>
>26. By reason of the Defendant's acts herein, the Plaintiff has and will
>suffer damage to its business, reputation, and good will, and the loss of
>sales the Plaintiff would have made but for the Defendant's acts.
>
>27. The Defendant threatens to continue to do the actions complained of
>herein, and unless restrained and enjoined, will continue to do so, all to
>the Plaintiffs irreparable damage. It would be difficult to ascertain the
>amount of compensation which could afford the Plaintiff adequate relief
>for such continuing acts, and a multiplicity of judicial proceedings would
>be required. The Plaintiffs remedy at law is not adequate to compensate it
>for the injuries threatened.
>
>WHEREFORE the Plaintiff prays:
>
>(a) That this Court grant an injunction enjoining and restraining the
>Defendant and its agents, servants, and employees from (1) directly or
>indirectly using the word "Freedom Box" or any other mark, word, or name
>similar to the Plaintiffs mark which is likely to cause confusion and
>(2) continuing any and all acts of unfair competition as herein alleged;
>
>(b) That the Defendant be required to account to the Plaintiff for any and
>all profits derived by the Defendant from the sale of its goods and for
>all damages sustained by the Plaintiff by reason of said acts of unfair
>competition complained of herein;
>
>(c) That this Court award punitive and exemplary damages against the
>Defendant and in favor of the Plaintiff by reason of the Defendant's fraud
>and palming off;
>
>(d) That the costs of this action be awarded to the Plaintiff; and
>
>(e) That this Court grant such other and further relief as it shall deem
>
>just.
>
>DEMAND FOR JURY TRIAL
>
>28. Plaintiff demands trial by jury on all issues so triable.
>
>Respectfully Submitted,
>
>L. C<_-*U-^V'*<.
>
>Michael J. Colitz, III
>
>Trial Counsel
>
>Florida Bar No. 164348
>
>Woodrow H. Pollack
>
>Florida Bar No. 026802
>
>Holland & Knight LLP
>
>100 N. Tampa Street
>
>Suite 4100
>
>Tampa, FL 33601-3644
>
>Tel: 813/227-8500 Fax: 813/229-0134
>
>michael.colitz(o)hkIaw,com
>
>woodrow.pollack(5),hklaw.com
>
>ATTORNEYS FOR PLAINTIFF
>
>_____________________________________________________________
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