Linux trademark bid rejected

Linux trademark bid rejected

Summary: An attempt by the nation's peak Linux body to register the name 'Linux' on behalf of Linus Torvalds has failed.The regulator, Intellectual Property Australia, turned down the application because the word 'Linux' was not distinctive enough to be trademarked.

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TOPICS: Open Source, Linux
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An attempt by the nation's peak Linux body to register the name 'Linux' on behalf of Linus Torvalds has failed.

The regulator, Intellectual Property Australia, turned down the application because the word 'Linux' was not distinctive enough to be trademarked.

The registration would have prevented companies from claiming the name as their own, or using it in trade paying royalties to the Linux Mark Institute, a global body established by Linux creator Linus Torvalds.

In a letter dated 31 August addressed to Perth-based lawyer Jeremy Malcolm, who represents Torvalds, Intellectual Property Australia official Andrew Paul Lowe said: "For your client's trademark to be registerable under the Trade Marks Act, it must have sufficient 'inherent adaptation to distinguish in the marketplace'.

"In other words, it cannot be a term that other traders with similar goods and services would need to use in the ordinary course of trade."

However, as IP Australia found, it was highly likely that other traders would also need to use the word Linux.

The letter also called into question Malcolm's right to speak for Torvalds in providing evidence to support the application.

"It is not clear from the declaration in what way Mr Jeremy Malcolm is authorised and qualified to make this declaration on behalf of Mr Linus Torvalds," the regulator said.

The applicant used Wikipedia and Google to back its claim but IP Australia dismissed the examples. "The entry from the Wikipedia encyclopaedia indicates 'Linux is a computer operating system and its kernel' ... demonstrating generic use rather than trademark use.

"Additionally, the Google searches provided simply show that the word Linux is a frequently used term on the Internet, and do not demonstrate trademark usage."

The Google searches provided simply show that the word Linux is a frequently used term on the Internet, and do not demonstrate trademark usage

Andrew Paul Lowe, IP Australia

The regulator also rejected the application on the basis it was similar to existing trademarks owned locally -- for example, 'LinuxWorld' is owned by publisher IDG -- and that consumers could subsequently be led to believe that services around such marks were provided by the same organisation.

Malcolm declined to comment on the decision, citing the need to consult with his client.

IP Australia initially set 7 September as the deadline for further submissions but this has been extended.

Linux Australia president Jonathan Oxer told ZDNet Australia the organisation would seek its members' advice on whether to proceed with the application, and bear the cost of $100 per month payable to IP Australia.

Oxer said the Linux Australia executive committee was in favour of continuing with the process, although there might be "a fairly low chance of success".

But ultimately, the rejection could be just what the doctor ordered.

"My understanding is that if Linux Australia can't register that [Linux] as a trademark, then nobody else could either.

"Our goal was to make sure the name is used in a reasonable way. If it's not possible [for anyone else] to register it as a trademark, then that has to some extent been achieved," Oxer said.

Linux Australia's other aim was to prevent the name 'Linux' from being used inaccurately, and the organisation was considering asking IP Australia to provide a written statement that there was no chance of any other organisation registering the trademark.

Topics: Open Source, Linux

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9 comments
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  • Linux is a computer syste

    "Linux is a computer system and its kernel."

    Well, I guess Richard Stallman will choke on this and me with him. Linux is indeed a kernel, but certainly not a computer system !

    Bizarre, really, that Wikipaedia says this. I'll check that soon...

    Till then,

    Cheers
    anonymous
  • Linux is a computer system

    "Linux is a computer system and its kernel."

    Well, I guess Richard Stallman will choke on this and me with him. Linux is indeed a kernel, but certainly not a computer system !

    Bizarre, really, that Wikipaedia says this. I'll check that soon...

    Till then,

    Cheers
    anonymous
  • Huh? How about 'Microsoft' and its trademark for 'Windows'?

    This is the sort of thing that can only happen in the legal environment. How about 'Windows'? An awful lot of people need to use that in their trade - whether they are glaciers finishing a house or computer people crippling a computer. How can 'Windows' be trademarked and 'Linux' not? I would bet it's not so much a matter of not being possible to trademark Linux, but that the application was weak and the case officer was having a bad hair day.
    anonymous
  • Huh? How about 'Microsoft' and its trademark for 'Windows'?

    "How about 'Windows'? An awful lot of people need to use that in their trade - whether they are glaciers finishing a house"

    Yeah, I'd watch out for those glaciers. They are awfully slow moving bastards but the sure finish any house that gets in the way!
    anonymous
  • Ripped off Fees

    I guess all those demand letters for fees for using the name Linux will have to be refunded now
    anonymous
  • Sounds like a poorly planned exercise

    I haven't been following this but it seems like some lawyer without proper investigation or backing has tried to shortcut the system and tried to register a generic name for a kernel of an operating system. This sounds very fishy to me.
    anonymous
  • How about

    do i need to pay royalties next time i go to the market !

    anonymous
  • Lawyer Fees

    Maybe this was just a way for another bottom feeder to rip off his client. Mate what did you charge for this lack of service
    anonymous
  • Windows too generic...

    Microsoft has already lost the ability to trademark Windows for being too generic.
    anonymous