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Trademark Trouble: Obelix versus MobiliX



Unless you are as powerful as Disney, Coca-Cola, or the Olympic Committee, worldwide and universal trademarks don't exist; the same name can often be used in trade for completely different things.

-- Dennis Ritchie

As a result of the trademark trouble with Les Éditions Albert René (Paris) this Open Source project former known as MobiliX has been renamed to TuxMobil.

The Charge

Tux and the Law In June 2001 I have got an informal request from the German legal representative of Les Éditions Albert René (Paris) holder of the trademarks "Asterix" and "Obelix" , to unregister the name MobiliX, otherwise they would take legal action. Together with my lawyer I have tried to find an arrangement, to satisfy both parts. Also I have announced this case to the Free Software Foundation - FSF and in public to the Free Software Community. Many people have written to Les Éditions Albert René (Paris) the holder of the trademarks. Other people have provided a list of projects with similar names ending on "iX" (see below). This list has grown quite big (more than 500 entries), therefore it's not continued anymore.

The site MobiliX is dedicated to Mobile UniX systems. It leads you to a lot of useful hands-on information about installing and running Linux and BSD on laptops, PDAs and other mobile computer devices. MobiliX is an acronym of the words "mobile" and "UniX". To avoid any legal trouble with this name Werner Heuser has registered the name at the German trademark register in the year 2001. It is a common practice to build new names for Unix related topics from a word naming the topic and adding the letters "iX" at the end. For some examples see the list below. The German computer magazine iX is even named by these letters. The name Unix itself is a registered trademark of The Open Group . Often this suffix is used to name other IT products, too. Also the name Mobilix is already registered for a German manufacturer of children furniture (but in another trademark class). In Denmark the name Mobilix is used by a telecommunication company. I don't intend to make any references to Asterix and Obelix on my web pages. As far as I know any of the male Gaul characters of the Asterix and Obelix stories has a name ending on "ix". Therefore almost every Unix project using this name scheme could get severe trouble.

First Instance in Court

Both Names are NOT Similar

The proceeding without court didn't succeed. In November 2001 Werner Heuser owner of MobiliX has been legally charged to withdraw the trademark, to pay a compensation and more. The charge is up to app. 250.000 USD or six months prison. All fees for the lawyers and the court through three legal instances are up to 60.000 USD. I have decided to take another lawyer Jaschinski, Biere & Brexl - JBB , which is a wellknown lawyer-society for legal problems of Free Software.

The response I (22 pages, German, 21.1.2002) [PDF] of my lawyers Jaschinski, Biere & Brexl - JBB is available online. We also offered the lawyers of Obelix to publish their documents here. But they didn't agree.

In the hearing from 12th June 2002 the court Landgericht Muenchen I (Az: 21 O 17363/01) has appreciated the arguments of Les Éditions Albert René (Paris) but finally it has rejected them. The hearing was attended by members of the Linux community, members of the press and wellknown lawyers (e.g. Guenter Freiherr von Gravenreuth ).

In the written verdict the court writes: "The big popularity of the comic-character 'Obelix" doesn't imply, that this word can be seen as a well known trademark." Also it doesn't seem possible to mistake both trademarks for each other. "A similarity in the writing or meaning of the words 'Obelix' and 'MobiliX' can be excluded, ..". A might be similarity in the sound of the words is without any importance, because "if a word is used with a wellknown meaning, any similarity in the sound doesn't cause it to be mistaken for another one, [..] a chance to mix the words caused by a smililar sound, might be accepted, if only the suffix 'ix' or the syllable 'lix' brings a connection to the charging trademark into mind. Such an extended coverage can't be accepted by the court chamber, because the suffix 'ix' is used not only for the naming of comic-characters, but for computersystems also, as in 'Unix'."

The written verdict (18 pages, German) [PDF] is available online.

Court of Appeal

Both Names are VERY Similar

On 12 August 2002 the plaintiff has appealed against the court decision. The laywers of Werner Heuser Jaschinski Biere Brexl (JBB) gave permission to make their defense plea against the appeal (18 pages, German) [PDF] available online.

The court has released the written verdict a January 27th 2003. Contrary to the first court, the chamber says that Obelix and MobiliX are very similar. On 21 November 2002 the court of appeal in Munich (Germany) had the first proceeding. The written verdict was released at January 27th 2003. Contrary to the decision of the first court it states that Obelix and MobiliX are very similar. Therefore it's likely that people take one for the other. It doesn't matter that the suffix "ix" is used very often to name computer related products, because the names have to be sufficient apart.

Highest Court

Case Dismissed

On May 27th 2003 Prof. Dr. Achim Kraemer has send a detailed request to permit an appeal to the highest German civil court the Bundesgerichtshof - BGH . The new German civil law allows only a very few cases for an appeal to the BGH. There must for example general public interests strongly be concerned. In his long and detailed argumentation Prof. Dr. Kraemer writes: "The commercial usage of domain names leads already at the time of their registration to preventive reactions by holders of older trademarks, which claim their trademarks as violated. Particular risks exist for so-called word-trademarks, which contain parts of the common language, if they are combined with suffixes or prefixes used in certain groups. If trademarks are protected to much excessive, as the appeal court has done in our opinion, some very famous but fancy names may occupy a wide range of the language and it will become impossible for others to create new word-trademarks." The case was legally finished at the beginning of September 2003. The I. Zivilsenat of the Bundesgerichtshof - BGH has rejected our request to permit an appeal, without giving detailed reasons. The chamber quoted the appropriate part of the law only.

European Office for Harmonization

Second Chance

At October 9th 2003 we have requested the deletion of the community-trademark Obelix from the class number 9 of the trademark register at the European Office for Harmonization in the Internal Market - OAMI. We assume that the trademark Obelix was not used in that class during the first five years from the beginning of the registration. The detailed arguments of the lawyers Jaschinski Biere Brexl (JBB) are available (6 pages, German) [PDF].

In September 2008 the Office for Harmonization in the Internal Market - OAMI has rejected our request to delete the trademark Obelix.

Danish Telco Orange A/S Defends their Trademark Mobilix at the Highest European Court

Heise News: The Danish Telco Orange A/S has defend their trademark Mobilix at the highest European Court. The court states "Obelix" and "Mobilix" are not similar names.

Projects Under Siege

There are already some other projects under siege. Probably because of the high risk to loose in court, some projects have withdrawn their domain and/or their trademark already. One may ask whether Les Éditions Albert René (Paris) will charge the owner of the trademark UniX The Open Group soon?

  • Masterix (Germany) : the former holder of the trademark is bearer of a masters degree, therefore he has choosen the name - the link now points to a new domain owner, who is not Mr. Groegel who has been charged (withdrawn)
  • Skrobelix (Germany) : the former holder of the trademark is Mr. Skroblin, his former company Skrobelix GmbH creates Unix related software, therefore he has choose the name - the link now points to the successor Skroblin GmbH (withdrawn)
  • Globelix (Italy/USA) : translation software - the link points to a site under construction (appeal against registration of trademark, withdrawn)
  • Oblix Inc. (UK/USA) : the company manufactures security software (appeal against registration of the trademark)
  • Mobilix (DK): a Danish telco has won against Les Editions Albert Rene in the first instance of the European court. See this Spiegel article (in German).
  • Kobelix (Germany): has got a request to withdraw the domain.

How To Help?

The fee for the court and the lawyers is tremendous (app. 60.000 USD if the trouble continues through every of the three possible instances). But MobiliX doesn't need donations yet. But you may give a donation to the Free Software Foundation - FSF (Europe), to support other Free Software projects in trouble. It's also important to get as much publicity as possible to put an end to these kind of threats against Free Software. If you want to contact me, please use the contact link at the bottom of this page.

Many readers have written to Les Éditions Albert René (Paris) per e-mail. They have friendly suggested to put an end to this trouble. But as mentioned above, the plaintiffs accused me of inventing "a new kind of electronical terror", therefore I doubt this will be of use.

Arguments

Similar Names and Projects

There are thousands of domains, projects and trademarks ending on "ix". When I got the charge I started to collect them, hoping to impress the judges, by many names (not only from the Unix world, but from medicine, arts and other sciences). The judges didn't care. And now I have removed the list from this document, to make it more concise.

This site describes other uses of the Unix trademark.

Words on "iX"

These German words are often originated from Latin or Greek (or English).

Affix, Appendix, Aviatrix, Bellatrix, Cervix, Kruzifix, Helix, Infix, Interfix, Mastix, Matrix, Mix, Phoenix, Postfix, Praefix (Prefix), Prolix, Radix, Six, Suffix, Transfix, Traktrix (math. curve), Remix (music.), Zirkumfix.

Suffix "iX"

These suffixes on "ix" are common in German.

  • bix
  • brix
  • croix
  • dix
  • fix
  • flix
  • hix
  • kix
  • ix
  • lix
  • pix
  • prix
  • mix
  • nix
  • rix
  • roix
  • six
  • thix
  • trix
  • tronix
  • vix
  • wix
  • ..

Or with different spelling but a similar sound:

  • ics (electronics)
  • icks (Tricks, Frolicks)
  • iks
  • igs
  • uegs
  • yx (Styx, Onyx, Archeopteryx)
  • ycs
  • ycks
  • yks
  • X
  • ..

Every Latin number ending on nine has the "IX" on its end. Since I don't know much about ancient Latin, I'm not sure whether "ix" has also a grammatical sense and how common it is in the language.

Prefix "mobil"

There are many names and even trademarks with the prefix "mobil" in German.

  • Mobilat, medicine
  • MobilCom, phone service provider
  • Mobile, art work, (perpetuum mobile)
  • Mobiliar, furniture
  • Mobilette, motor bike
  • Mobilisin, medicine

Prefix "obel"

  • Obelisk, column
  • obelia, colonial marine hydroids
  • obelus, a symbol used in ancient manuscripts

Names on "iX"

There are many famous names on "ix", either names from fiction or famous people or events.

Grand Prix (car race, ..), Ralf Bendix (musician), Otto Dix (artist), Phoenix, Jimi Hendrix (musician), Manfred Deix (artist, cartoons).

First Names on "iX"

  • Alix, American, female
  • Beatrix, German, female
  • Felix, German, male

Books & Comics

There have been similar characters and book titles before, as far as I know:

  • Jacques Martin: Alix l'invincible (1948)
  • Jean Nohain: Totorix
  • Marcel Moniquet: Aviorix
  • Bruce Sterling: Schismatrix, Argument Verlag

Press Articles

An incomplete list of articles about the case (not every link is pointing directly to the articles yet!):

Useful Links

This case is not the only one. Below you may find links to documentation about similar cases, legal advices, specialized lawyers and organizations for the promotion of Free Software.

Translations

Presentations

Credits

I have got assistance from hundreds of people. They helped to build up the list of trademarks and names above, wrote letters to Les Éditions Albert René (Paris) , gave me hints and tips. The Tux with article signs is taken from FFII.








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© Werner Heuser 1997-2011 · http://tuxmobil.org/mobilix_asterix.html · last change Mon Aug 31 2009