VIOLATION OF TRADEMARK RIGHTS
There is a German organisation named "openAPC Foundation" that uses the same name "OpenAPC" without having any right to do that. So that's nothing less
than theft of our trade mark. The interesting thing: they're aware of this fact, their lawyer gave the advice not to use this name but they have founded
their organisation with the knowledge that they can't use this name legally.
That's what happened in the exact order of events:
- End of 2008 - Development of the OpenAPC software was started
- 20 Aug 2009 - the OpenAPC Project Group releases its very first official version
0.1ALPHA to the public, this is "Prior Art" and
filed on freshmeat.net (scroll down on last
page to find the first entry on bottom)
- 22 Feb 2010 - Mr. Schimunek - who is now chairman of the openAPC Foundation - contacts us by mail, the OpenAPC software meanwhile is available in
version 0.3BETA; this mail is nothing less than the concession
that he has no rights on the trade mark "OpenAPC":
...we found your homepage when we did a naming query regarding "APC" and "open source".
We, this is an industrial consortium working with advanced process control (APC) solutions mainly in the
semiconductor and solar industry. The used software is based on statistical analysis of process and quality
data and some yield control. We intend to found an association targeting consortial and collaborative open
source software development. Our former idea was to call the association "openAPC Foundation e.V.",
now we found that there is something with "openAPC" already existing. Certainly, we'd like to
avoid any conflicts, so I would like to get in touch with you.
- 23 Feb 2010 - one day later:
...thank you for the fast reply. We are glad that we are in touch with you and that we have the opportunity to
discuss how to proceed. Actually, we don't intend to copy your software or your homepage. We just thought that
openAPC is a good name for what we are doing. So we registered one year ago the www.openapc.org URL . In a few
weeks we can register or association, however our attorney recommended to change the name to avoid troubles
with you and "OpenAPC International". On the other hand we like the naming "openAPC Foundation"
and we thought it is good to get in touch with you...
- 4 Mar 2010 - after getting some legal advice the OpenAPC Project Group rejected the request to use the name and answered to Mr. Schimunek:
Meanwhile I could discuss the problem with our lawyer. His opinion is very clear in this case, he told me that
there are only two solutions: you change the name of your web page or you buy our name. In his opinion you have
to do that because you are not using the name and we are able to prove that we _really_ use the name for a much
longer time than you.
The last sentence gave Mr. Schimunek and the openAPC Foundation the possibility to make suitable offers to us. That never happened, not as an
answer to this mail and not as an answer to the many mails that have been exchanged later.
At the moment I'm not sure if I can totally agree with him regarding these two - very restrictive - solutions.
I wish there could be a third solution that is better for both of us. So if you or your lawyer has any suggestions
feel free to tell it to me.
- 2 Aug 2010 - the "openAPC Foundation" was registered at the German Vereinsregister, 15 days after
OpenAPC version 0.7 was released and
about than 340 days after the name OpenAPC was used first time in public by the OpenAPC Project Group
- 32 May 2011 - as the last try in a long list of mails where we tried to solve this problem with, we contacted the openAPC Foundation
again, now in German so that there is no loss in communication, this mail was simply ignored by them (but they should be able to understand their own language!?)
The German trade mark law "Markengesetz" §4 clearly defines three possibilities to get a trade mark legally:
- a name is registered
- a name is used
- a name is notorically known to the public
None of these possibilities are true for the openAPC Foundation:
- they did not register the name before 2 Aug 2010 and also not before 20 Aug 2009, there is no trade mark "OpenAPC"
registered at the German DPMA nor any other authority
- they did not use the name, the registered but unused and empty domain openapc.org is no "usage"
- the name "OpenAPC" did not exist in public until we released our software, so it wasn't known before
Beside of that the OpenAPC Project Group actively uses the name "OpenAPC" since 20 Aug 2009, so that's Prior Art
As a conclusion according to international and German law the usage of the name "OpenAPC" by the openAPC Foundation is simply illegal.
Some words about that "openAPC Foundation": they tell about itself they are a non-commercial organisation that develops an open source
software. But their home page does neither look non-commercial nor open source. There is no software available, you can't download anything but you
can become a member of their foundation - for an annual fee of EUR 5000 or more. In case there are no hidden information about their
foundation we did not found, until now that seems to be a completely new definition of "non-commercial" and
"open source". So if anybody knows what they are really
doing, please let us know