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[Axiom-developer] Axiom trademark and ethics

From: Tim Daly
Subject: [Axiom-developer] Axiom trademark and ethics
Date: Fri, 16 Oct 2009 11:19:50 -0400
User-agent: Thunderbird (Windows/20090302)


I looked at where one can

search for trademarks, file a trademark application, etc.  It looks
like it costs $325.  I think filing an application for "SageMath"
would be an appropriate use of Sage foundation funds.

There is a search form here:

I've only ever heard of trademarking math software in the context of
Tim Daly remarking that "Axiom" is his registered trademark, so I
searched Axiom first and found 103 hits -- the first I clicked on was
for Axiom: "Providing Christian evangelistic and ministerial services
directed towards athletes, athletic coaches and those whom they
influence, in the sport of skateboarding".  I tried searching "Axiom
and software" (and similar searches) but couldn't find anything about
the Axiom math software (I just thought it would be a good example).

There are at least 359 registered trademarks that contain the word
"Sage" in them.   Searching for just "Sage" and software yields just 5
or so, including

which is the one for the accounting software.  Their description is:
"Computer software for use in managing accounting and business
information, retrieving accounting and business information, viewing
accounting and business information, managing contacts and performing
accounting functions in the fields of business management, information
services, and research systems; computer software for use in
electronic commerce to allow users to perform electronic business
transactions via a global computer network, electronic mail, Internet
website hosting, Internet website development, and Internet access;
and accompanying user manual documentation for use with all of the
above. "

If there were a problem trademarking the name Sage, it would I guess
be most likely to be because of the accounting software.

The word "SageMath" does not have any entries at all in the trademark database.

The point of this email is to discuss:

  (1) Should we trademark SageMath (pretty obvious "yes")?

  (2) Should we also trademark Sage in the context of math software,
if possible?

  (3) Is there somebody who like "legal stuff" who is willing to help
out with the application?   Because I'm not such a person.

I'm not in a hurry, but think it's about time to start moving this
process forward.

I am not a lawyer but I DID speak to a lawyer about the Axiom
trademark. The issue of a trademark is to make sure that the
mark implies the particular product named. So the trademark is
used to identify a particular product and to protect the
reputation of that product. You do not want someone posting
bugs about "Sage" that do not apply to your software, thereby
possibly damaging the Sage reputation. Since the GPL2 allows
all of your code to be cloned, the name IS the project.

Trademarks in the United States (I have no idea how this works
in the rest of the world...) can be obtained in two ways
(according to a trademark lawyer). You can "register" a trademark
or you can use the mark in an exclusive manner for 7 years and
obtain a "common law trademark". Axiom has been unregistered
since NAG dropped the registration in 2000. It has been used in
a computer algebra sense to apply to this project since that time.
Legally, then, I am the common law holder of the Axiom trademark
as it applies to Computer Algebra software (there are, as you have
noticed, hundreds of 'Axiom' trademarks in different areas).

In either case, in order to keep a trademark, you need to defend
against any and all infringing uses of the mark or you might lose it.
You also need to keep the mark current with active use, which Axiom
does. Keeping or losing a trademark does not depend on registration.
Registration makes it easier to show that you are the holder but
you can still lose the mark if it is not actively defended.

My campaign with Sage to stop using the name "Axiom" as a command
to invoke Fricas was part of the necessary defense of the mark.
The Axiom BSD license is copyright-based and allows forking the code
but not use of the name.

Trademark is a different area of intellectual property law and
nothing in the GPL2 or BSD license allows infringing of a trademark.
You'll have the same problems when defending "Sage".

I have sent you notes about the use of "Sage" in the area
of mathematics when I have found other math software using the
same name. If another math software project uses the same name
you would have to show that you were using it first. Even then
you might not be able to be able to defend the name.

If you want a trademark you will need a unique name in the field
of use and you will need to defend it. Registration is little
more than publicly stating ownership but it is not required.

I hated consulting a real, live lawyer. It costs me time and
money I'd rather not have spent. But at this point I am reasonably
certain that I will win a trademark case.

Open source software developers all think they know the law and
every mailing list on every project seems to have the same debates
without really speaking to an expert. Yet we would laugh at lawyers
who had opinions on programming issues.

If you are going to try for a trademark (registered or common law)
talk to a lawyer first.

Rather than have the usual opinion-flamefest about trademarks and all
of the usual legal-issue-opinion-noise this will generate, you might
consider having a debate about a new project name, like "SageMath"
instead of "Sage". Your project name IS your project and you want to be
able to build (or damage) your reputation as you see fit. The last
thing you need is bug reports from some other project.

Note that except where it applies to the Axiom trademark where I have
legal advice, my opinions on trademark law are worthless.

On a related but independent topic there is the ethical issue of using
a project name. If some other math software project has been using that
name (eg "Sage") and there is a possible point of confusion then you have a
responsibility to act ethically, that is, to not do anything that would
deliberately cause confusion with another persons reputation. In fact,
you have an ethical obligation to fix any confusion that arises. For me,
ethics trumps legal issues so it is more important to "do the right thing"
because it is right than because it follows the law.


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