Ken Belanger's Pocket PC may be a gag, but his lawsuit against Microsoft is not.
On Tuesday, the entrepreneur sued Microsoft in small claims court in San Francisco, saying he created a Pocket PC 17 years ago, and therefore has rights to the name the company has given its handheld computer.
Belanger's product is not a computer at all but a decidedly low-tech joke gift poking fun at tech industry hype. People who shell out $9.95 for the device receive a box slightly bigger than a deck of cards that contains a poker chip and a set of instructions telling them how to use the chip to make important business and other decisions by flipping it like a coin.
Belanger said he has been selling the product offline for years, but when he went to sell it via the Internet last summer after losing his dot-com job, he discovered that Microsoft had registered Pocketpc.com.
Now Belanger is claiming a common-law trademark on the product because he says he coined the name even though he did not register it. "All I want is my URL," said Belanger, who is also seeking $5,000 from Microsoft in lost sales for the month of December.
A representative for Microsoft, which registered Pocketpc.com in March 2000, said he hadn't seen the claim and couldn't comment specifically except to say that Pocket PC is a generic description.
Belanger, who said he's used small claims court twice before to win $1,000 each from Pac Bell and a collections agency, is turning there this time because he can't afford the attorney he would need to fight Microsoft in federal court.
Plus, he said, small claims court brings the software giant down to his level. The court doesn't allow attorneys, meaning the company representative would have to go mano a mano with Belanger.
"I consider myself a little guy who's using the system," Belanger said. "In small claims court they can't bring 50 lawyers. They can't use their standard tactics."
Although small claims court decisions are not precedent setting, Belanger hopes to use any judgment in his favor to bolster his claims to the domain name. Belanger said his next stop after small claims court is one of the ICANN-approved (Internet Corporation for Assigned Names and Numbers) domain name dispute resolution bodies, which have the power to transfer Web addresses from one party to another.
Jonathan Band, an intellectual property attorney with Morrison Foerster, said the case depends on several factors, including whether people might be confused about the two products. "If there's a likelihood of confusion as to origin, then maybe there's a case," he said, adding that "the likelihood of confusion, given that it's a gag gift, is pretty small."
Belanger may have claim if he can prove he had the name first, Band said, but when asserting his rights to the Web site, he also may have to prove Microsoft registered it in bad faith.
It's not the first time Microsoft has run into legal challenges involving the name of its handheld computer. The company stopped calling the device a PalmPC after Palm Computing, creator of the PalmPilot, sued it in 1998.