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Linux Trademark Rejected in Australia
daria42 writes "Linus Torvalds' bid to have the word 'Linux' trademarked in Australia has failed, with the local intellectual property regulator sending his lawyer a vitriolic letter deriding efforts to provide evidence the trademark application was legitimate. In the letter, the regulator points out that information from Wikipedia and Google used by the lawyer to support the trademark application is simply not effective in making the case for a trademark to be registered."
In the letter, the regulator points out that information from Wikipedia and Google used by the lawyer to support the trademark application is simply not effective in making the case for a trademark to be registered."
The statement "information from Wikipedia... is simply not effective in making the case for a trademark" is wrong. The article states:
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.
So basically, Wikipedia as a source is fine, but in this particular instance, the source didn't back up the claims. A totally different situation than the summary makes out.
What Linux is the name of this fire we had a while back. Ah, the old Linux Fire.
That would be perfectly legal, trademark or no trademark. It only protects the use of the word in the specific domain it is defined (Operating systems, presumably, in this case). The purpose of trademark protection is to avoid confusion for the customers (and thus protection from that confusion for the owners).
Here in Japan, for instance, there is both a Unix laundry detergent and a Unix brand of plastic food containers. The domains do not overlap and thus no confusion.
Trust the Computer. The Computer is your friend.
And yet, the Internet Archive's Wayback machine has been successfully used in several copyright court cases.
I'm not agreeing or disagreeing that either of these are the best sources. But, if Internet Archive is a valid legal source, then by all means Wikipedia is. (Because it keeps records of page updates as well, so you could trace the entry all the way back to the original post of the entry, as well as identify specific sources of each tidbit of information).
Google... nah, not really. Google is good for finding information, not validating it, imho.
I8-D
Microsoft Pillows in Australia, Microsoft (the software company) has had 2 lawsuits against and lost both of them...
The requirements for a specimen provided to foreign trademark associates are rather strict, and need to demonstrate (generally) that a mark is being actively used in commerce and in the way that is described in the trademark application.
... in which case he'd need to show examples of most to all of these or amend that part of the application.
In this case, it looks like they registered in classes 9 (basically computer programs), 16 (printed matter), and 42 (computer programming services).
So they would usually need at least three specimens that show a commercial use of the mark (LINUX) in each class. Probably the best way of doing this would be for the applicant (Linus) to show a web page of his own ownership that sells/provides these services and goods directly. Advertisements and brochures are good as well.
Now, there are some parts of his app that specify use of the mark in things like " Computer programs, data processing apparatus and devices, peripheral devices for computer systems, apparatus for recording, transmission and reproduction of signals, magnetical and optical data carriers "
All he would have to do is make/produce a brochure and he'd have been golden, provided that his app didn't ask for retroactive protection (the Oz IP site doesn't go into that much detail in its preliminary searches).
Things that (perhaps surprisingly to many) almost NEVER work as a specimen are things like letterhead, business cards, many types of advertising, and even certain presentations of packaging.
Now, a refusal doesn't mean that a mark is dead. Linus will now have the opportunity to provide a substitute specimen that will satisfy the requests and requirements of the examiner.