Linux Australia trademark battle takes new twist

A company which had tried to trademark the term Linux Australia, prompting the intervention of Linus Torvalds, is now suing its own former executives
Written by Andrew Colley, Contributor

Legal wrangling over a South Australian company's attempt to trademark the term Linux Australia has taken an unusual turn.

Linux Australia Pty Ltd, currently trading as Openera, came under scrutiny from open-source enthusiasts last month when it was revealed that its application to trademark Linux Australia had been challenged by Australia's peak open-source body, Linux Australia Inc.

The South Australian-based company has now issued legal proceedings against two former business partners, Suzannah Williams and David Probst, in a bid to regain control of intellectual assets held by the pair, including the controversial trademark currently being assessed by IP Australia.

Openera alleges the pair's refusal to divest their claim to the trademark and the domain name, linuxaustralia.com.au, is in breach of an exit agreement they signed in July.

While Openera conceded that the trademark application was unlikely to succeed, it claims that without control over it, the company's ability to trade is in danger.

Openera director, Hosi Stankovic said his company -- which has traded under its current name since it discovered the naming conflict with Linux Australia Inc last year -- needed to control the rights to trademark Linux Australia in order to protect the legal position of its contracts.

"We've not been able to resolve the [situation] with Linux Australia Inc, but at no point have we ever had the situation where the business couldn't trade until this matter when the former partners left," said Stankovic.

Linux Australia's (Pty Ltd) solicitors, Townsends, contacted ZDNet Australia last week claiming Williams and Probst had persistently breached other terms of the agreement established in July.

The legal proceedings are the latest in a series of battles raging quietly around the rights to trademark the word Linux in Australia.

Last month solicitors representing Linux Australia Inc revealed that Linus Torvalds was assisting its bid to protect word 'Linux' from trademark claims in the Australian jurisdiction. Currently the Linux Mark Institute -- established to protect the word from intellectual property claims internationally -- is not active in the Australian jurisdiction.

That means that Australian companies are free to invent and trademark names that use the term locally beyond the reach of rules set down by LMI.

Linux Australia Inc decided to act to on the matter after it was contacted by Linux Australia Pty Ltd concerning the naming conflict.

Stankovic, wary of sensitivities of the open-source community, last week stressed that Openera (under its former guise) never attempted to trademark the word Linux.

He said Openera had received a large amount of hate mail from the open-source community which, he claims, is labouring under a false a perception that Linux Australia Pty Ltd had tried to take control of the word Linux in Australia.

Stankovic said Linux Australia was just one of a number of Australian companies that had applied for trademarks on business names involving the word -- one of which had already been successful, prompting Australia's IP authority to return an "adverse" response to the application to trademark Linux Australia.

He also was particularly critical of public comments made by Williams who lodged the original trademark application on behalf of Linux Australia Pty Ltd. She claimed Openera's motives were not as innocent as Stankovic suggests in a statement on the issue seemingly targeted at the open-source community.

"There was no malice on my part -- but the new company directors of Openera, Hosi Stankovic and Vik Ratnieks, seem to have a different aim. We have parted company. Please accept my apologies for any inconvenience caused and my withdrawal of the trademark," said Williams.

Solicitors representing Openera contacted ZDNet Australia early this month asking us to consider Williams' allegations carefully before publishing them.

Williams herself has declined to comment further on the matter, citing a court injunction restraining her from speaking to the media.

ZDNet Australia's Andrew Colley reported from Sydney. For more coverage from ZDNet Australia, click here.

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