Linus wants money to protect the Linux trademark

Linus wants money to protect the Linux trademark

Summary: If a trademark owner doesn't protect their mark, it loses its meaning and may eventually go lower case -- Xerox becomes xerox. But how can you protect a mark when one of its chief values is that it's given away?

TOPICS: Open Source

registrered trademarkOne story we didn't cover here last week was Linus Torvald's moves on protecting the Linux trademark.

Through the OSDL, Torvalds has launched a Web site called the Linux Trademark Institute. "Your source for information on and licensing of the Linux trademark." Put simply, Linux is trying to raise money in order to protect the word Linux from abuse.

But the initial moves didn't go over very well, possibly because of how LMI's Australian affiliate went about things, with Perth lawyer Jeremy Malcolm demanding $5,000 each from about 90 companies, leading to headlines like "companies to be charged for free software." 

That's not how trademark law works. It's not a user fee. It's a commercial responsibility. If a trademark owner doesn't protect their mark, it loses its meaning and may eventually go lower case -- Xerox would become xerox. But how can you protect a mark when one of its chief values is that the product is free?

In Linux' case, you ask those who are using the mark commercially to contribute to the common defense. As the LMI Web site states, this article represents fair use of the trademark. But if you have a software distribution which you want to call Linux, or if you're going to call yourself a Linux consultant, then they want you to pay and help defend the mark.

Mr. PeabodyPamela Jones of Groklaw calls all this a "tempest in a teapot" but I'm not so certain. To understand why, set the Wayback Machine for the year 1994.

The Web was just being spun, Lisa Loeb and Bobby Brown were big pop stars (I swear, I saw the sign), we all had more hair, and William Della Croce Jr. of Boston filed for the Linux trademark. It was granted in September, and Croce started sending out letters far and wide, demanding that everyone in the industry pay him 25% of their revenues for using his trademark. It all went to court, and in 1997 the trademark was assigned, personally, to Linus Torvalds.

Since then, Jon "Maddog" Hall of Linux International says, some $300,000 has been spent on registration and legal fees to defend the mark around the world. He continues:

We have tried to make the licensing as unobtrusive as possible, tailored to the amounts of money that people might be making off the use of the mark, and with an eye to keeping the cost to non-profits and user groups as low as possible. We also have to re-license the name periodically so we can protect against "name squatting" (ala URLs) and defunct entities who no longer need the name they registered.

The trademark laws of the world were not created in the days of the World Wide Web, or even the Internet, where unscrupulous people can take advantage of a good name for a good idea and create havoc for people who want to start legitimate industry in their territory under a mark that is registered in some other country. By protecting the mark of "Linux" in as many countries as possible, LMI makes this type of deliberate extortion MUCH more difficult and MUCH more expensive.

You may all complain now.

Topic: Open Source

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  • Protectign trademarks like Linux and Windows is impotant.

    Reagardless which you happen to like.

    Curious, which "trademark" would have been infringed upon more by Lindows?
    • As soon as MS contacted them...

      They nodded nicely to MS and changed the name to Linspire.

      Stop trying to make in some way "all things Linux" and "all things OSS" look criminal, please.
      • Don't be so defensive, I asked a simple question.

        And no, they didn't change their name voluntatrily, it took a law suit that still isn't over. My question still remains...
    • Interesting thought..

      I would say neither.

      I am still wondering why Microsoft hasn't tried to go after X-Windows :)
      Patrick Jones
      • I always have a hard time with figuring out trademarks.

        In such a case like this the word "Linux" is being trademarked (already done). So if I name a product something like LinuX` a violation? Or how about Linux/X or in this case Lindows. Seems a fine hair to split.

        I suppose to a commercial company the $5K a year is the cheap way to go, but for the little guy I am not so certain.

        Don't take this the wrong way but it seems to me "open source Linux" is sure starting to look more and more like a commercial (for profit) product. Companies being sued over the EULA (GPL), law suits over trademarks, etc.. By the way when they say a "defence fund" they are really talking about funding law suits against violators.
        • I have no problem with it being "commercial"

          As long as the GPL is followed and they allow me to "tinker" with it as I please. I have purchased plenty of distributions in the past. Maybe going commercial will bring more incentive to make more "consumer friendly" setup routines.

          And I had no grand delusions about the defence fund being anything other than a means to sue violators :)

          Trademarks are a tricky thing. How does one judge "customer confusion" that an infringement may bring? Especially, as has been discussed on these forums before, given the lack of research on the average consumers part.
          Patrick Jones
          • Nor I Patrick, in fact I think it's a done deal.

            Becoming "commercial" that is.
        • Look at the fee schedule

          The fee schedule is one of the links in the story. If you're already in the market it's free. If your sales are as much as $2 million, it's $2,000. It's a sliding scale.
      • Timeline?

        Didn't the term "X-Windows" exist before Microsoft Windows did? In that case, I would think whoever holds the trademark on X-Windows (if there is one) would go after Microsoft.

        Carl Rapson
        • If there is a trademark..

          it is probably owned by MIT. Although it may have been transferred to the X.Org foundation.

          And yes, X-Windows was created before Microsoft Windows.
          Patrick Jones
        • One reason for the settlement with "Lindows"...

          ... may have been the way the Judge was beginning to look askance at whether Windows could even belong to Microsoft. Took the company a long time to get title to the name, and the Judge might have decided that wasn't such a good decision.

          Could be that if pushed the term windows may be so widely used that Microsoft can't own it.
          Then I suppose there'd be a contest to rename it. I hereby reserve "Perfection" as my entry.
          Anton Philidor
  • Protect the word Linux from abuse?

  • I've got an idea

    Why not spend the money to get Linux ruled an "official" UNIX?
    Roger Ramjet
    • And then...

      And then all of the "official UNIX" vendors can spend $5k to be called "Linux" too. :)
  • Actually, it's long over.

    Remember -- Microsoft paid them $20,000,000 to stop using the name [i]Lindows[/i].
    • Damn, they changed the talkback again

      This was supposed to be a reply to No_Ax.
    • What should Lius pay them then?

      I mean the name "Lindows" would seem to violate both trademarks equally, what should Linus pay them to change?
      • What does this response have to do with anything?

        MS sued Lindows and ended up paying them to stop using the name, so the trademark issue was technically avoided. So I guess the answer to your question is to wait and see what happens when Linus actually sues someone.