Linux Trademark Fun Continues

Orre noted an article running on internetnews about LMI's efforts to license the Linux trademark to companies that use it. Prices range from $200 to $5k for companies with over a million bucks in revenue.

Comments

Why charge for it?

[benna]

Why not just create a blanket license which says for what purposes the Linux trademark is allowed to be used, and be done with it. No need to charge companies for it, if, as Linus says, it isn't about the money. It seems to me this would satisfy the requirement that Linus police his trademark.

Re:Why charge for it?

[enodev]

because lmi tries to get self sufficient. currently they lose money (lawyers, etc.).

Re:Why charge for it?

[Q2Serpent]

It may not be about the money, but it still costs plenty to keep a trademark. Some money needs to be charged just to break even.

Re:Why charge for it?

[n0-0p]

There are several reasons why that approach won't work. This groklaw post covers the issues very thoroughly.

Re:Why charge for it?

[maxwell demon]

But why charging non-profit uses?
I don't have a problem with companies earning money with Linux based products to have to pay for using the trademark. But non-profit uses should be cost-free.

Re:Why charge for it?

[Iriel]

While this isn't always the case, the nice thing about paying for something is the paper trail it leaves behind. When you pay for the license to use the Linux trademark, there is a financial transaction that leaves a veritable homing beacon on your product for the purposes of 'policing' the trademark. Most /. readers have probably already seen, by now, a large number of creative and technology content given the OS wrong license with the appropriate legal battles as a result. This is just a man protecting the name he made.

As it has already been pointed out, trademarks aren't cheap and the name is the only thing that Linux himself actually "owns" in the truest sense of the word. As such, he has a right to charge for the right for people for using his trademark. There are plenty of companies that use the linux technology without the Linux name, afterall. It's not as if he's charging to use the kernel, just the word Linux in your product title.

Re:Why charge for it?

[xappax]

I agree that LMI needs and deserves money, and that it's fair to ask businesses who are making a profit off of linux to chip in, but there's a bigger problem than the fees that's unresolved.

If Linus is the trademark holder, then like he says, we're relying on his personal judgement to "protect Linux" rather than using it as some kind of "legalistic enforcement tool". I know he's a good guy, but if we just trusted everyone to be good guys, we wouldn't need stuff like the GNU license.

What happens if he changes his mind? What happens if he gets sucked into a weirdo-cult? What happens if he dies and his heir is a greedy scumbag?

If we're really serious about making Linux a decentralized movement, open to reinterpretation by anyone, we need to remove points of control like this one and put them in the hands of trusted organizations or legal agreements.

Re:Why charge for it?

[DrMowinckel]

What happens if he gets sucked into a weirdo-cult? You mean, as in the F(L)OSS Community?

Re:Why charge for it?

[Anonymous Coward]

In spirit I agree with you but legally speaking...no dice. You can't call your own burgers "Big Macs", even if you plan to give them to charity.

Re:Why charge for it?

[Pecisk]

non-profit != without money

Non-profit also means that you spend as much as you get.

But for correction please read Linus mail to lkml list, it provides lot of details and destroys this oversensational post and articles which caused that.
It is simple - if you are non-profit and want to call your product 'My Linux Babe', you can do it - just you won't get ANY protection when someone also takes this title. BUT if you are sublicenser of trademark "Linux", then your title is also protected.

It is clear I guess as that.

Re:Why charge for it?

[mwvdlee]

Trademarks need to be actively guarded to remain valid. And in order to actively guard them, their use needs to be actively monitored. This monitoring requires work and work costs money.

Re:Why charge for it?

[maxwell demon]

It is simple - if you are non-profit and want to call your product 'My Linux Babe', you can do it - just you won't get ANY protection when someone also takes this title. BUT if you are sublicenser of trademark "Linux", then your title is also protected.

It's not quite as simple. From Linus' mail:

Or, if the name ends up showing up in a trademark search that LMI needs to do every once in a while just to protect the trademark (another legal requirement for trademarks), LMI itself might have to send you a cease-and-desist-or-sublicense it letter.

Which means, that you are practically guaranteed to get a C&D letter from LMI sooner or later, even if you chose a name which isn't likely to be used by anyone else. Which in turn means that you are effectively forced to license the name.

BTW, I don't see how this legal requirement to enforce the trademark should suddenly disappear if it's in combination with another trademark. "Microsoft Linux" would still infringe on the trademark rights even though "Microsoft" is a trademarked name in itself. Therefore "Red Hat Enterprise Linux" should be an infringment either, despite "Red Hat" being a trademark in itself, and therefore the legal requirement of enforcement should hold there either.

IANAL, however.

So I guess...

[Nuclear Elephant]

Prices range from $200 to $5k for companies with over a million bucks in revenue.

So I guess that's free as in 'freedom' then?

Re:So I guess...

[gnasher719]

As has been explained at great lengths on groklaw, you are absolutely free for example to make a Linux distribution named "Knoppix" without having to pay anything, and obviously you are allowed to say "Knoppix is a Linux (R) distribution. Linux (R) is a registered trademark of the owner of the Linux trademark."

You are not allowed to create a distribution and call it "Knoppix Linux" without paying for the trademark. And Microsoft is not allowed to distribute "Microsoft Linux" without paying for the trademark. And once Linux takes over the computing world, Microsoft will not be allowed to rename "Vista" to "Linux" and distribute it as "Microsoft Linux" at all, in order to retain a tiny bit of market share, because Linus can refuse to let anyone use "Linux" in a product name if it isn't Linux what they are selling.

Re:So I guess...

[squiggleslash]

Yup.

Probably worth mentioning, because some people seem to think it's an issue: it's not necessary to infringe upon a trademark to make a program work the way you want it to work. There's nothing inherently wrong with trademarks, either in theory or in practice, in fact, when properly used they provide a useful way of ensuring people can't pass off their stuff as something else.

Not that they're impossible to abuse, but I don't see any evidence Linus is abusing them. Actually, I'd go further than that: At the moment, Linus isn't making any money from the operation, seeing it as something that should be self-funding and non-profit. I know a lot of people are defending him against supposed charges that this is not what's happening, as if there'd be something wrong if it was a profitable operation.

But if he wants to make a profit from it, I'm not going to criticise him for that. He did some initial work that, while it may be overrated (the GNU tools form a bigger, more complicated, and IMNSHO, more useful part of the end user operating system than his kernel), was useful to many people and captured a lot of mindshare. He associated a corruption of his name to that program. And he has managed that project for more than a decade. In the view of most free software people, and I'm one of them, it would be unethical for him to be rewarded by crippling the program itself, preventing people from being able to improve it and to help one another. But making money from the mindshare aspect, from being able to say "This is Linux, the Real Thing. The version officially blessed by Linus Torvalds, as you can see from the name"? That's fine by me. That's actually beneficial to everyone.

The software continues to be free. Sure, my version will have to be called "Squiggix". Your version will have to be called "Nuclearelephantix". The fact we can't call them Linux, we can't claim they're the real thing without actually funding the project, is hardly damaging to our freedom. And it certainly helps Linus, should he ever want to, to make sure his name is only a[tt]ached to versions he has control over (a key artistic moral right - nobody should have to be associated with something they didn't endorse), and helps end users choose on the basis of active support for Linux, and the stamp of approval of a known person.

Re:So I guess...

[Eunuchswear]

Yup, I only browse using Debian IceWeasel.

Re:So I guess...

[MrShaggy]

There ya go. I am excited! For once someone says what Ive always wanted! Its ok for someone to make money, based on the work that they did.

This is a good idea

[TurdTapper]

I don't see anything wrong with this. He is protecting the name and still allowing it to be accessible to your every day developers/programmers.

If a company has more than 1 million in revenue, 5k is pocket change. While 200 dollars is well within range of a couple of guys programming in their basement. And this also allows some protection for those guys in their basement if someone tries to take their name. They might not have the money for a legal battle, but for 200 bucks they can insure their name.

Re:This is a good idea

[GigsVT]

If a company has more than 1 million in revenue, 5k is pocket change.

Bullshit.

1 million in revenue means 10k is a good 1% profit. Such a company has to give up 0.5% of their profits for the year just to license something they thought was free.

A scam is a scam no matter who is running it.

Re:This is a good idea

[Evil Adrian]

They've been trying to protect the trademark since 2000, it's common knowledge.

If you didn't realize you had to license the name, TOO BAD. You totally deserve to get burned if you don't do your homework before you go into business.

Re:This is a good idea

[releppes]

With that arguement, you might just as well say an average income family of 40k/yr should have no problem renting Windows for $100/yr? And all the arguements of why BUY Windows when Linux is FREE would be moot.

Don't get me wrong, this whole trademark thing may be good. I just don't agree with your rationale.

I don't know how trademarks work in general, but one thing I was curious about was the comment in the artical about how anyone could create their own Linux name/product, but then be a possible target of someone else coming with a cease and desist letter. So with the trademark thing, say someone created their own Linux name/product but didn't opt for buying the Linux trademark. Say that product/company becomes very successful. Could some prick then go buy the Linux trademark for that product then play games with them?

Laws

[kevin_conaway]

Who enforces these laws? Are they enforced by the country where the trademark is being used?

If I am in Swaziland and I start selling my own version of Linux, who is going to stop me? I suppose the community won't recognize it as an official "Linux" distribution?

Re:Laws

[duffbeer703]

The trademark just means that you cannot call yourself "Linux".

If you call your distro "Swaziland Linux", you need to buy a license.

If you call your distro "Swazilandix" or "Swaziland Operating Environment", etc, you don't need any license at all.

If you start selling soda and call it KevinConaway Coke, you need a license from Coca-Cola. If you call it KevinConaway's Cola, you're ok.

Trademarks are different than patents or copyrights. They exist to protect the integrity of a brand -- not the ideas.

Trademark Requirements

[Nuclear Elephant]

Trademark Requirements:

1. Does it run Linux?
2. ...
3. Profit?

Re:Trademark Requirements

[Androclese]

Your list is incorrect.

1. Does it SAY Linux in the product name?
Y - Pay for a License
N - Don't need a License

2. The Linux Name has integrity and is not watered down

Everybody needs to stop jumping to conclusions and read what is actually trying to be done here.

Didn't we discuss this already?

[A beautiful mind]

I mean, what's the new thing? The previous two articles made it clear that it costs between $200 and $5k. Linus posted about it on LKML and basically confirmed. Why is it a bad thing? Well, if anything blame the trademark system, that someone needs to agressively protect a trademark.

Linus Torvalds explains it

[enodev]

To prevent more FUD being spread, please read

http://lkml.org/lkml/2005/8/20/95

Re:Linus Torvalds explains it

[david.given]

Linus Torvald explains Slashdot:

...quite frankly, the whole _point_ of slashdot is to have this big public wanking session with people getting together and making their own "insightful" comment on any random topic, whether they know anything about it or not.

...and, once again, gets it spot on!

(I'm just wondering whether this gets modded 'Funny', 'Insightful', or 'Flamebait'...)

Re:Linus Torvalds explains it

[ifwm]

"Once you own a trademark, the next phase (at least in the US) is to make sure it stays protected by policing the use."

That's only one option. The another option is to allow it to become public domain.

Much closer to the spirit of OSS in my opinion, but I'm sure I'll get flamed for saying so.

Red Hat doesn't have a license

[darthcamaro]

That's the real interesting part of this - Red Hat doesn't have a license, neither does Mandriva. Novell does. So if it's good enough for Red Hat not to have a license than it's good enough for me.

Re:Red Hat doesn't have a license

[TurdTapper]

Red Hat doesn't have one because they aren't using 'Linux' in their name. It's Red Hat, Inc.

Re:Red Hat doesn't have a license

[TheRaven64]

They are creating a derived work of the Linux kernel (taking the kernel.org sources and applying custom patches). They are then distributing this thing as Red Hat Enterprise Linux. It's not Linux, although it's very close, and it is being sold as Linux. They definitely need to license the trademark. Interestingly, they don't for Fedora Core, since that doesn't have Linux in the name. I would not be surprised it they simply dropped Linux from the name of their enterprise system - Red Hat is fairly well associated with Linux already, so they could get away with just calling it the Red Hat Enterprise System (or whatever). This would have the added advantage for them of strengthening the Red Hat brand, at the expense of the Linux brand, and allowing them to move to a BSD or HURD kernel at some point in the future if this proved advantageous.

Re:Red Hat doesn't have a license

[n0-0p]

If you had a valid sublicense before August 2004 you are grandfathered in for free. Based on that I expect that Red Hat doesn't have to purchase a license at all. Perhaps Novell did need to purchase a license due to Suse changing hands, or maybe they just chose to opt in and avoid any potential hassle. After all, the cost is quite negligible for them.

To end this for once and for all

[jurt1235]

After several days of reading about this subject and totally wrong commenting on it myself, here the groklaw link:
http://www.groklaw.net/article.php?story=200508160 92029989

This article links to
http://www.linuxmark.org/

This explains everything, so a lot of projects should pay, but at this moment they are just trying to make up for the cost of protecting the trademark by going after big players (>1mln US$).

I only disagree with one thing: A trademark does not garantee quality at the moment of rewarding the trademark. You only know that the product sucked when the trademark is revoked because of bad quality.

Re:To end this for once and for all

[cpt kangarooski]

I only disagree with one thing: A trademark does not garantee quality at the moment of rewarding the trademark. You only know that the product sucked when the trademark is revoked because of bad quality.

No, a trademark is essentially a stand-in for quality. A customer can know, based on the mark, that drinks branded as Coke will have a particular taste; that cars branded as Yugos will suck.

If these expectations aren't met, due to quality standards that vary (either way) among identically-branded goods, then the trademark is no longer serving its purpose. Then bad things happen to the mark holder's rights.

This is why it is critical that trademark licenses include quality control standards and auditing. If Linus isn't spot-checking licensees, and making sure that their software is still basically Linux, and not significantly different, and revoking licenses where these standards aren't met, his rights are in jeopardy. In fact, failure to include provisions for doing this will harm him right off the bat.

Re:The trouble with 'free'

[Agret]

It's only if you are using the Linux name on something that is earning money. It is the name you pay for. You don't have to pay for it but if someone else gets a license for the same copyright as your name they can send a cease and desist. You are buying protection.

The trademark owner

[ImaLamer]

From TFA:

On January 18th 2000, Torvalds, in an e-mail to the Linux kernel developers list, explained the need to protect the Linux trademark.

At the time, Torvalds noted: "Trademark law requires that the trademark owner police the use of the trademark."

The e-mail:
http://www.ussg.iu.edu/hypermail/linux/kernel/0001 .2/0646.html

Linus disses /.

[Anonymous Coward]

" the whole _point_ of slashdot is to have this big public wanking session with people getting together and making their own "insightful" comment on any random topic, whether they know anything about it or not."

- Linus Torvalds, 20 Aug 2005

http://lkml.org/lkml/2005/8/20/95

Re:Linus disses /.

[Mr. Underbridge]

No, he's just dissing the id10t's who post their opinon before bothering to read up on the subject.

That's a fine distinction. That's like saying I don't hate the KKK, I just hate the racists in it.

But...

[Vo0k]

But I've already paid $699! How can they charge me again for the same thing?!

I call BS!

[ImaLamer]

Red Hat doesn't have one because they aren't using 'Linux' in their name. It's Red Hat, Inc.

Makes me wonder though why Novell pays, being that they are "Novell Inc.".

What about the product: "Red Hat Enterprise Linux"?

Interestingly, I notice that the Red Hat web site doesn't use "Linux" on the front page except in direct reference to RHEL.

My Favorite Quote From Linus

[bajan_on_ice]

from http://lkml.org/lkml/2005/8/20/95 which explains this whole debacle...

Gaah. I don't tend to bother about slashdot, because quite frankly, the whole _point_ of slashdot is to have this big public wanking session with people getting together and making their own "insightful" comment on any random topic, whether they know anything about it or not.

Now THATS insightful!

Re:The trouble with 'free'

[VP]

Trademark law is different from copyright law. The fact that in the US the same governmental agency handles both doesn't make them the same.

The software is free, and you don't have to pay to use it. If you want to register a trademark which contains "Linux" in it, then you need to license the use of "Linux".

What kind of revenue

[slapout]

revenue

Net or gross? :-)

Re:Huh

[tha_mink]

I guess information wants to be free, but not as in beer.

You can have Linux for free still, you just can't use the name in your product/service/name etc, without paying for the privilege. It's still free.

Re:The trouble with 'free'

[alexwt]

You're not paying to use the software, you're only paying if you want to create an entity containing the name "Linux" and wan't to be protected against someone else using that name.

A/C trolls /.

[Anonymous Coward]

Linus also said:

"[ And don't get me wrong - I follow slashdot too, exactly because it's fun
    to see people argue. I'm not complaining ;]"

Since it's now salshdotted, see http://72.14.207.104/search?q=cache:HR1UTE7bLf0J:l kml.org/lkml/2005/8/20/95+&hl=en [Google cache}

Re:Huh

[ucahg]

[i]I guess information wants to be free, but not as in beer.[/i]

A trademark is hardly 'Information' in the sense of the word that free software advocates would purport it.

Consider if Microsoft created a terrible linux distro purposely, and called it Ubuntu, and marketed it as Ubuntu (not assocaited with MS) on the web. The people over at the real Ubuntu would want to fight back. That's the power of the trademark, it protects your name and image, not your 'information'.

The big deal

[VP]

The big deal in Australia is that Jeremy Malcolm sent the letter to people and companies who have no intentions to use Linux as part of their product names, service names or brands. They had mentioned Linux as one of the platforms their products run on, yet they still got a letter. The letter was also worded poorly (think RIAA-type legalese), that is why the whole uproar started.

I hope Linus, Maddog, and LMI understand that they need to control how the enforcement of the mark is done before they let seemingly well-intentioned lawyers take a short cut and mass-mail a hard-to-comprehend legal form...

Re:The trouble with 'free'

[maxwell demon]

The software is free, but you have to pay to use it.

You don't have to pay to use the software. You don't have to distribute it or anything based on it either. You don't even have to pay for selling it. You do have to pay for calling the thing yor distribute "Linux" (or anything which contains "Linux").

For example, Knoppix will not have to pay anything, because it's not named "Linux", but, well, "Knoppix". I'm not sure if "Linspire" is already considered close enough to "Linux" to need a license, however.

Note that software licensing and trademark licensing are two completely different things. For example, if you make a Linux Distro and name it "T-Linux", I'm sure you'll get trouble with the Deutsche Telekom, depite them not being involved with Linux code at all: AFAIK they have a trademark on the initial "T-" part (T-Online, T-Mobile, ...)

Re:What about amateur distros?

[Vo0k]

Torvalds explained that a company could decide not to sublicense and call their product "anything MyLinux but the downside is that you may have somebody else who _did_ protect himself come along and send you a cease-and-desist letter."

Company or not, if you use something that is a trademark, owner of the trademark can send you C&D. That means, if some asshole pays $200 to LMI for sublicensing "Tiny Linux Router", then they take my code (it's GPL, they can), register the domain name, start selling my distro (still everything legal and okay, GPL.), and then send me a C&D letter stating I'm to stop using that name for my distro because it's their trademark and they own the license, so they get rid of the free competition. I still can rename it, and keep releasing under the new name (after removing 500 or so references to the name in the sources and docs), but then I'd better register the trademark of the new name or they license it again and continue litigation until I completely give up development of the distro, and they can continue selling it for a fee undisturbed.

IMHO, LMI should give licenses for quality non-commercial distros for free.

The best approach to trademarks: use them

[panurge]

Linus is quite right. I will go further and suggest that it is a good idea for small developers to create their own trademarks, and this is especially beneficial in a FOSS world.

Trademarks are not expensive or hard to come by, believe it or not. You may be told you need an agent. Believe me, if you are intelligent enough to be a software developer, it is easy to navigate trademark paperwork. You do not need an agent. You need to behave like a developer using a new technology, i.e. read the documents, follow the rules. (Yes, I practice what I preach. I took out 2 trademarks last year, for a total of about 10 hours of actual work starting from scratch, though admittedly it was not the first time.)
My big recommendation: develop a generic trademark that does not depend on appearance. It is a nice stealth weapon.

Why are trademarks nice?

• You use them to protect your own name and reputation
• You can use them in documentation you produce; if anyone steals your work and is stupid enough to leave in the trademark (yes, they are) you have a nice clear infringement and their lawyers will probably tell them to stop or pay up.
• They actually get you taken seriously.
• They do not cause complicated copyright and patent issues of themselves.

I have to add a caveat. In the US trademarks are a bit broken. A trademark in one area is allowed to spill into another, so that our favorite software company was allowed to prevent another company, not a software company, calling itself Gentium. In Europe the rules are clearer and enforced, so if I trademark "we make things that don't suck" as a mark of a software company, I cannot then prevent (say) a manufacturer of compressors from using the same descriptive mark. But that doesn't invalidate the idea. Trademarking the name of a software product, or a phrase associated with it, means that someone cannot simply steal your name and reputation even though they can, perfectly legitimately, reuse your GPLed code.

Remember William Della Croce, Jr. ???

[linuxguy]

Most of you probably do not remember him. He fraudulently registered the Linux trademark in 1996 and asked people to pay for use of the name "Linux".

Many of you now seem to think the name Linux does not need to be protected. You either have short memory or are too young to know what battles Linus had to fight to get here.

Most of you are free-loaders anyway. Interested only in what you are getting for free and contributing nothing back. Most of you given half the chance would have really cashed out on Linux, unlike Linus Torvalds.

See: http://www2.linuxjournal.com/article/2425 for some of the history.

Re:GNU, GNU, and GNU

[Master of Transhuman]

Go here: http://www.gnu.org/prep/standards/html_node/Tradem arks.html which says the following:

2.3 Trademarks

Please do not include any trademark acknowledgements in GNU software packages or documentation.

Trademark acknowledgements are the statements that such-and-such is a trademark of so-and-so. The GNU Project has no objection to the basic idea of trademarks, but these acknowledgements feel like kowtowing, and there is no legal requirement for them, so we don't use them.

What is legally required, as regards other people's trademarks, is to avoid using them in ways which a reader might reasonably understand as naming or labeling our own programs or activities. For example, since "Objective C" is (or at least was) a trademark, we made sure to say that we provide a "compiler for the Objective C language" rather than an "Objective C compiler". The latter would have been meant as a shorter way of saying the former, but it does not explicitly state the relationship, so it could be misinterpreted as using "Objective C" as a label for the compiler rather than for the language.