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project name and domain name conflict

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Hi all, I received a mail today from http://sourceforge.net/projects/axiomengine that my own project at www.axiom3d.dk conflicts with there name and domainname. I have used the name Axiom3D since 2001 and I can see the people complaining have only used it since 2007. My project is semi-opensource, which means I have to approve who works on it. Currrently I dont earn any money on it, but hope at some point I do. I would like to keep my domainname and project name because I have invested a lot of resources into it. Does anyone know where I stand in this kind of problem. I was using the name and domainname 7 years before they did. anyone?

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I highly doubt they registered trademarks for the name. Carry on. Just send a friendly reply with the information like you provided in your post (although the open-source/non-profit bit isn't really irrelevant).

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Yum, trademark law.

The easiest situations would have been for you to hold a trademark (even an unregistered one) for longer than their project has existed. In practice, this is as simple as saying "Axiom 3DTM" in reference to your game engine, which indicates an intent to hold a trademark over that name. Of course, at least in the states, holding a registered trademark and using the corresponding "Axiom 3D®" notice gives you more options to defend your trademark (in particular, assigning the infringing party in federal courts), but a simple unregistered trademark is usually enough to prevent infringing.

I notice that neither you nor the other project have any such statement of intent over the Axiom3D trademark. In this case, the standard protocol is to establish trademark rights based on legitimate use. The court where the case ends up (if it ever ends up in court because neither project wishes to give up these rights) can decide three things:

  • The "Axiom 3D" name is too generic to constitute a valid trademark. This would be the obvious answer when someone tried to establish a trademark on a common object name, such as "bread" or "water". The result is that both of you are allowed to say that you are producing an Axiom 3D Engine (as opposed to the engine). However, this is highly doubtful, as the usual meaning of "Axiom 3D" is not that of a 3D engine.

  • The "Axiom 3D" name constitutes a trademark, but both claims are acceptable and can coexist. This is for instance the case when a sanitation repairs company sells HaxcoTM pipes, and an investment bank sells HaxcoTM insurance policies, using the same trademark: since the objects are very unlikely to be confused with each other, the trademarks can coexist. In your situation, however, this is completely out the window.

  • The "Axiom 3D" name constitutes a trademark, and both claims cannot coexist. Then, the claimant which has maintained uninterrupted use of the trademark for longer than the other
    generally obtains the right to use the trademark or decide that the name falls, through trademark dilution, under the first possibility (an Axiom 3D Engine). Of course, it is the court who decides what constitutes "uninterrupted use".


Of course, you would still have to defend that claim on a per-country basis, anyway, because international trademark law is far from smooth and uniform. Until then, you have three possible choices:

  • Defend your trademark aggressively, by asking that the Axiom Engine team cease the unauthorized use of your Axiom 3D trademark, which you have held since 2001. Note that a simple mail is not a court-valid proof and can only be seen as an informal statement of intent, so you would need to follow up with lawyer-written paper mail if they don't comply if you actually intend to defend your trademark.

  • Defend your trademark passively. This involves either not answering or giving an informal answer that you will keep your right to use that trademark, for as long as they don't send you a legally binding document (such as the typical cease and desist letter). Once you do get that letter, you can hire a lawyer and defend yourself.

  • Give up your exclusive rights on the trademark, thereby proposing that both teams can state that they have designed an Axiom 3D engine. Doing this in a legally binding manner will prevent you from defending your trademark aggressively (you did, after all, accept non-exclusivity) but will let you retain the right to use the trademark in the general manner and defend that right if necessary.


Bear in mind, however, that I only have access to very limited information about your situation, and that international trademark law is not my main field of expertise (which would actually be labour law and corporation law).

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TO: ToohrVyk

wow,.. thanks for your well written comment. I know how to get the trademark in my country but I would assume that it would only be valid in my country. How does one access a register an international trademark?

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There is no actual serious international trademark enforcement system. The only thing which gets reasonably close is the madrid system. Even then, this only gets your trademark registered in participating countries, and you would still have to enforce it in each individual country through legal action.

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Quote:
Original post by Crisium
I have used the name Axiom3D since 2001 and I can see the people complaining have only used it since 2007.
...
Does anyone know where I stand in this kind of problem. I was using the name and domainname 7 years before they did.


This is not as you think. From a little poking around in the repository I can see that they moved to sourceforge in 2003 yet the earliest I have come across in the source files is 2002, maybe even earlier. I wonder if they have docs which date before 2001-05-07

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Quote:
Original post by CmpDev
Quote:
Original post by Crisium
I have used the name Axiom3D since 2001 and I can see the people complaining have only used it since 2007.
...
Does anyone know where I stand in this kind of problem. I was using the name and domainname 7 years before they did.


This is not as you think. From a little poking around in the repository I can see that they moved to sourceforge in 2003 yet the earliest I have come across in the source files is 2002, maybe even earlier. I wonder if they have docs which date before 2001-05-07



As I understand there project it's a C# project and C# isn't that old? or am I mistaken? If I remember C# came out around 2002 and definitialy not for 3D realtime stuff at that time.. so there C# project would have to come at a later date.

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Quote:
Original post by CmpDev
I don't actually know but a quick google tells me june 2000?
http://www.theregister.co.uk/2000/09/12/official_microsofts_csharp_is_cool/


Hi,

yes.. C# came out around that time... It was good for webforms and aspx websites,. but not realtime graphics. Today it's another story.

But I did some digging in the dates with the Axiom 3D engine website..and can see you are correct I have the dates wrong. I'm able to trace them back to 2005 and like you said it came from another site (so I don't know the actual start date of there project).

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Quote:
Original post by Crisium
I know how to get the trademark in my country but I would assume that it would only be valid in my country. How does one access a register an international trademark?

Your lawyer can help you with that. Don't got lawyer? Get lawyer.
Read this.

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Quote:
Original post by Tom Sloper
Your lawyer can help you with that. Don't got lawyer? Get lawyer.


Or, before you decide to trade in your kids college fund to feed a poor starving lawyer , you could always just send them a friendly email stating that your position, and pointing out that you're both open-source projects, and that neither of you have money to spare for this kind of nonsense.

Now see what you made me do.. I spilled hot coffee on my lap! I figure this must have seriously damage my sperm-quality, and I wish to sue Starbucks for the life-earnings that my 5 Nobel-Prize winning children would have made if it wasn't for them irresponibly selling hot coffee. Plus tort and damages. Anyone have a good tort lawyer contact they'd like to share?

Allan

(I do actually agree with Tom almost 95% of the time)

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Quote:
Original post by __ALLAN__
before you decide to trade in your kids college fund to feed a poor starving lawyer [remainder of sarcasm deleted]
(I do actually agree with Tom almost 95% of the time)

It certainly won't cost anything approaching a "college fund" to obtain a lawyer's advice on this legal matter that cries out for a lawyer's advice.
And I agree with Allan ninety-something percent of the time as well.

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Quote:
Original post by __ODIN__
Now see what you made me do.. I spilled hot coffee on my lap!
Liebeck v. McDonald's Restaurants is quite different than what you've probably heard. For example:
  • Liebeck was the 79-year-old female passenger in a parked vehicle who was the subject of third-degree burns to her genital area that warranted hospitalization for eight days undergoing surgery and two more years of treatment.

  • Liebeck sought pre-trial alternative dispute resolution, seeking to settle for $20,000 to cover the $11,000 she incurred from medical expenses. McDonald's offered only $800 and then refused further attempts to settle.

  • There were already 700 reports of varying injuries resulting from hot coffee unnecessarily served at 180 °F. (Hot coffee cools exponentially. Overheating coffee does not substantially increase the time that the coffee will remain heated. Better containers, not overheating, is the proper solution.)
Wikipedia does an okay job with describing the actual facts of the case. What isn't talked about is that Liebeck walked away two years later with barely enough, minus the cost of litigation, to cover the medical expenses she incurred over the course of those two years.

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