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What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 7:22 am
by Chris Corbyn
So, I own http://swiftmailer.org/ and have been running this project called "Swift Mailer" since 2005.

I just googled for "Swift Mailer" and right up there on the first page, just under my own link comes this site:

http://www.swiftmailer.net/

This appears to be a new startup company for mass mailing and they are using my project's name. This project started in 2008 from what I can tell, yet mine began in 2005, at 3 years before them.

Now, I'm quite annoyed about this, but really, where do I stand? I don't care that this other company exists, but I do care that they're using my project's name, especially given the industry they're in. My concern is that I have no rights at all. Despite having copyright on my project, this is a "service" whereas mine is software. I don't know anything about trademark law but I do know that being a completely open source, free to use project I haven't paid for any trademark rights (not sure I could afford it). Still, is there not some kind of implied trademark?

All I want them to do is change their name so that my project's "established" name is not subject to anything this project decides to do, and so that potential users are not confused by this other project.

I'd like to contact them to file some kind of DMCA but kind of need to know more about my rights here.

That sucks :(

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 7:29 am
by papa
You might want to talk to a layer and see what he/she has to say, and then contact swiftmailer.net when you have more information.

So your swiftmailer is not a registered company?

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 7:37 am
by Chris Corbyn
papa wrote:So your swiftmailer is not a registered company?
Nope. It's just an open source software project, but all the same, it's had copyright since 2005.

I'm not sure I can get a trademark since I'm not a company.

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 7:50 am
by Chris Corbyn
Hmm, reading around this topic a little more, it seems I have no protection at all without a trademark, which is country-specific and requires a registered company (at least in Australia).

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 8:40 am
by papa
These laws differs from country to country so hard to say what you can do. Here in Sweden you could register a company just to reserve the name and declare 0 SEK income every year.

But of course other countries can register the same name... So don't how you can protect your name internationally.

Pretty ugly site they have... :P

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 9:19 am
by Bill H
Your site doesn't say where you are located (probably a small weakness, but...) but if you are in the US...
Good news:
US Copyright law covers you from the time of publication without you needing to file anything. The mere statement of copyright within the body of the work is sufficient and there is no time limit for filing it formally.
Bad news:
You need to file copyright application and receive formal copyright documentation before you can enforce that copyright. You can, however, do that after the infringement occurs without losing the effective protection.

Trademark rules are not the same. You can register a trademark as an individual, but I'm not sure you can use it retroactively. If you do register it you certainly can use it from the date of registration.

You might be able to do something with copyright, but if you're going to you will need to register the copyright first.

But I suspect that you are really only dealing with a trade name issue here, and those are an issue registered with the Secretary of State of the state in which you are incorporated or registered to do business. That protection is only good state wide. That's why you see things like "Bass Fishing of Arizona." You are selling a product called "Swiftmailer" and doing business under the same name, while they are merely doing business as "Swiftmail." If you are both in the same state the Secretary of State of one state might allow it as the two names are not identical, while another state might disallow it as they are too similar. If you are in different states...

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 2:49 pm
by Luke
he's in australia

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 3:20 pm
by Jenk
Chris, are you officially an Australian citizen, or are you an ex-pat?

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 3:44 pm
by Christopher
It is interesting ... their software is actually named "SwiftMail" not "SwiftMailer". They took that domain because someone is camping on swiftmail.com and swiftmailer.com (blocking both of you ;)).

I wonder if SwiftMail uses SwiftMailer? I also wonder if that site will still be here next year? The guys name appears to be Alex Glass. He's in New York.

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 6:03 pm
by alex.barylski
I believe Canadian trademark law imply a legal ownership after one year of use -- so I am willing to bet Australia, USA, etc are probably similar.

I recall reading an article in regards to OSI having a similar issue with companies selling their software as "open source" when their licenses were clearly not OSI approved. They claim to have ownership of the "open source" trademark.

I think in this case, your probably SOL with winning any trademark dispute, even if you owned the 'domain' SwiftMailer since 2005. This is why you should buy all appropriate domains if you take the trademark seriously.

Look at AKAPJ and his Smarty Lite later renamed template lite due to Smarty requesting he change the name due to trademark issues. You could ask the company to select a different name and threaten legal action -- if that doesn't to it I think your pretty much stuck hiring a lawyer -- which would cost you more than worth IMHO.

Bad mouth his business on your blog ad others, add a link to your sig, make a lot of bad noise for the guy and I'm sure he'll change his mind.

I'm with you I'd be PO'ed too :)

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 6:28 pm
by Chris Corbyn
I contacted the owner to explain the situation and his response was basically "you're at the top of google so what's the problem?" on addition to saying I have no trademark in the US. He did say that he may sell the domain to me and that he only used swiftmailer.net because swiftmail variants had already been used. I may look into buying the domain and see if we can come to some agreement there. I'll keep that in private however.

One reason it's bugging me is that I was considering starting a hosted mass mailing service myself. Fun project and I have the tools at my disposal :)

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 7:53 pm
by alex.barylski
One reason it's bugging me is that I was considering starting a hosted mass mailing service myself. Fun project and I have the tools at my disposal
I developed an application that used SwiftMailer -- I was working on a email marketing solution and when you released SwiftMailer I switched from PHPMailer and I considered a name like SpectraMailer.

Now after 2 years of research and competitor comparison I have decided it is probably the most saturated market.

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 8:17 pm
by Chris Corbyn
Cool :)
PCSpectra wrote:Now after 2 years of research and competitor comparison I have decided it is probably the most saturated market.
Doesn't put me off at all. I won't be investing large amounts of money and I know for a fact I can get a few big clients up-front if I do this. I think I'm in a reasonably good position to launch such a project. You don't need to make much of a dent in the market to start making money and anybody who thinks you can launch a project and immediately get rich is dreaming really (not saying it doesn't happen, but you can't assume). The best scenario to start with is to stay above water. Not hard to do when all you've invested is spare time, for fun.

We're talking about a fair way off though... it's not as simple as many people may believe... at least, not if you want to scale well.

Re: What are my copyright/trademark rights here?

Posted: Mon Mar 09, 2009 9:18 pm
by alex.barylski
Doesn't put me off at all.
It does me but only because I worked for a major player in the email marketing market and I know they are flush with cash (and write crappy code) and ready to swallow anyone who dares to compete. :P

It's a daunting task when you tackle it alone on a limited budget. I tried several implementations for mass mail sending and profiled each...initially I had each script use a custom fixed length record file and essentially truncate the file by X number of records. Then I tried dumping X records into an array, iterate the array and send X emails per invocation.

Lastly I believe I now use buffered queries in PDO and select the entire resultset and iterate one record at a time.

Actually to be honest, I'm not sure what implementation I have now but it's one of the above. :P

The email sender was by far the most complex task, which Swift made magnitudes easier but still lots of complex logic.