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Pocket PC: A handheld or a gag gift?

A novelty-gift inventor and a Microsoft paralegal argue in small-claims court over the rights to the term "Pocket PC."

A novelty-gift inventor faced off with Microsoft on Tuesday in an unlikely tussle over the rights to the term "Pocket PC."

The low-key battle took place in small-claims court, with entrepreneur Ken Belanger arguing that he lost $5,000 in sales last December because of the software giant's use of the term. Belanger claims he coined the word in 1985 for a gag gift item and therefore holds rights to the same name Microsoft gave to software for handheld computers.

The software maker sent a paralegal from Redmond, Wash., to defend its case in court.

"'Pocket PC' is a generic term used throughout the industry," company representative Marianne Peterson said to a judge in a near-empty court. "Microsoft is simply not infringing this trademark...and asks the court to dismiss the case."

In a last-minute strategy switch to "throw Microsoft off-guard," Belanger pleaded that he held a distributed copyright for the term "Pocket PC". He had originally planned to argue that he held a common-law trademark over the term "Pocket PC," but he said he did not have the resources to fight Microsoft on such a claim.

Legal experts say the dispute may be as flimsy as Belanger's gift item, which features a poker chip imprinted with the words "In Silicon We Trust." Instructions advise flipping the chip when faced with difficult business decisions.

Ian Ballon, an attorney and partner with the law firm Manatt Phelps & Phillips, said the case holds no water because Belanger pleaded his case in a small-claims court, when copyright lawsuits are restricted to federal court.

"He's mixing apples and oranges," said Ballon, who called the case a "nuisance suit."

"He's trying to bring a trademark claim under the Copyright Act...and copyright claims can only be brought in federal court," he added.

What's more, Ballon said the name "Pocket PC" cannot be protected under trademark law because it can be thought of as a generic term, as Microsoft pleaded. Unless there is confusion between the items sold, complainants in such suits rarely have a case.

Belanger said he's used the same small-claims court twice before to win $1,000 from Pacific Bell and $2,000 from Digital Equipment Corp.

Despite a doubtful tone from the judge, Belanger is confident he'll win "if the judge follows the letter of the law."

Assuming he wins, Belanger said he plans to expand the litigation, asking for lost sales in succeeding months and setting into motion a bid to capture the Web address Pocketpc.com from Microsoft.

"Once I win this case, I can submit 10 more claims per year," said Belanger, a 40-year-old software entrepreneur. "I can just keep nickel and diming them at $5,000 a pop."

The court is expected to mail out its ruling in a week.