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Is Axe I/O a trademark violation?

Adinfinitum

Veteran
As a potential trademark attorney for Fractal back in 2010, I would say "yes" that is a potential trademark infringement worth sending a cease and desist letter. I have musical instrument manufacturer clients and have dealt with IK (one of the Kerzners) and have gotten major players to migrate to alternative marks.

Axe-Fx has acquired strong secondary meaning and has a very strong basis to notifying IK to migrate to an alternative.

Yes, Axe is an abbreviation for guitar, but IK is using it's Mark for an audio interface for use with Amplitube. Way too close. Fractal already makes a plug-in/reverb, had plans to release the original Axe as a plug-in back in 2012 I believe, and has expanded (bridged the gap) to new product (reactive load boxes, pedals).

Fractal doesn't have to be jerks in its letter, but can send a demand and work out an amicable settlement. I do this on a weekly basis so no big deal.

Todd
 

Admin M@

Administrator
Fractal Audio Systems
Moderator
Looks like the product lacks the one feature which would mark it as a real innovation.
 

Adinfinitum

Veteran
"Axe-Fx" is hyphenated...one word, followed by the numerical edition designator II, II XL, II XL+, III.
My original Fractal product was AXE-FX (2007?), then called Standard" when the Ultra was released .

I know everyone wants to chime in with legal analysis and opinions (""that's just, like, your opinion man"), Fractal needs an attorney's advice and analysis in this situation. Cliff may decide "eh, whatever, I have firmware magic to create and get those FCs shipped" or decide that this is a potential biz issue). Solely Up to him.
 

shatteredsquare

Forum Addict
I'm not a lawyer, I just play a lawyer on TV. I will stop providing legal advice on the internet, but who takes legal advice from a guitarist forum?? I'll notate further commentary as my "legal two cents", further defined as "something else shatteredsquare has no idea about"
 

Adinfinitum

Veteran
Hey, everyone is absolutely entitled to chime in - it's a forum and that's its purpose. I certainly post things I have no expertise on. And Lord knows if anyone posts ANYTHING on speakers, a certain person who used to be a forum contributor would respond with scientific and expert precision. But, opinions are welcome.

Courts determine whether TM infringement exist based on a multi-factor test called "likelihood of confusion.". Each US Federal Circuit has slightly different factors, but the main ones are:

1. Are the marks "similar" (not identical" in sound, meaning, appearance, or overall commercial impression?; And
2. Are the goods/services of the parties "related" in purchasers, channels of trade, marketing channels, etc."

Also important is "strength of the mark" and third-party use of similar marks.

Based on the above TEST, that is why FLEET ENEMAS does not infringement FLEET BANK (but that doesn't mean either won't screw you up the ass), or AXE BODY SPRAY doesn't I fringe AXE-FX.

Now, since everyone knows the TM infringement test, feel free to say what you think. Many TM cases include consumer surveys.
 

Shaw

Inspired
@Adinfinitum — I practice criminal law, so what I know of TMs is what I remember from law school years ago (i.e not much).... but doesn’t “Axe-FX” fall into the category of descriptive marks which have the weakest protections? (As opposed to arbitrary marks, like “Apple” for computers?)

Thanks for the refresher course. Can we get some CLE credit? ;)
 

TG3K

Forum Addict
...Courts determine whether TM infringement exist based on a multi-factor test called "likelihood of confusion.". Each US Federal Circuit has slightly different factors, but the main ones are:

1. Are the marks "similar" (not identical" in sound, meaning, appearance, or overall commercial impression?; And
2. Are the goods/services of the parties "related" in purchasers, channels of trade, marketing channels, etc."

Also important is "strength of the mark" and third-party use of similar marks...
This. ^^^

Back in the '90s I worked for a company that trademarked "Set It and Forget It" to describe our disk defragmenter. For the reasons you mention in point #2 above, we didn't do anything when Ron Popeil started using the phrase prominently in his infomercials for the Showtime rotisserie grill.
 
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