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Linux Trademark Rejected in Australia

Posted by CowboyNeal on from the minor-setbacks dept.

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."

14 of 295 comments (clear)

  1. The good, the bad and the ugly by adtifyj · · Score: 5, Interesting

    This is good news. Nobody can use trademark law to their advantage here in Australia. Nobody needs to be concerned about trademarks. Everyone can go back to using the word as they wish.

    The bad news is that bad people can use Linux however they like. This will mean that the Aussie LUGs will need to keep an eye out for slander and libel, and act.

    The end goal was to prevent trademark disputes, yet people in favour of the trademark want to spend money keeping the trademark application process going. Why?

    1. Re:The good, the bad and the ugly by adtifyj · · Score: 2, Interesting

      act is not a synonym for legal action. In the fictitious example you cite, the appropriate response would be to inform the ACCC that this "Linux OS" is being falsely presented as Linux. Remember that as a result of this trademark decision, Linux is now equated with an Operating System that uses the linux source code. It is precisely this wide definition that would provide the legal justification for the ACCC shutting down an OS that was clearly not being described properly.

      A less emotive example would be a manufacturer attempting to produce cardboard tissues. It doesnt matter whether Klennex has a trademark or not, cardboard is not a good material to wipe noses with.

      Less obvious abuses may require an advertising campaign or a peaceful protest outside of the offices of the offender; the actions required will depend on the situation the LUGs see as unacceptable.

      Now that the law is no longer involved, common sense can now fill the void, and Linux companies can keep their money, and pay the wages of the people that put their sweat into the quality of the name. In 10 years time, someone who attempts to slander "Linux" will be ridiculed on the front pages of APC.

    2. Re:The good, the bad and the ugly by B747SP · · Score: 4, Interesting
      It is precisely this wide definition that would provide the legal justification for the ACCC shutting down an OS that was clearly not being described properly.

      That's all well and good, but you know as well as I do that the ACCC couldn't shut down a loud party in a park.

      The 'ACCC', for those not ofay with the name, is the Australian Competition and Consumer Commission. Officially, they're the "Australian government organisation responsible for ensuring compliance with the Trade Practices Act". Practically, they're an utterly toothless tiger that, well, pretty much just lays around and does nothing really.

      Under the former head, Professor Fels, the ACCC took a pretty proactive role, and bounced around banging heads (where deserved) with gusto. Nowadays, it's toothless.

      Right now in Australia, for example, we're being utterly rorted by the oil companies. They've somehow managed to set up a situation where a bunch of issues (some real, some just 'excuses') are whereby the price of petrol (gas?) at the pump is skyrocketing, and the oil companies are actually turning a couple of million dollars a day, per company, extra profit. This isn't passing on of costs from higher worldwide oil prices, this is actual rorting. The whole country is screaming out for the government and the ACCC to act by way of investigation and regulation as appropriate. The ACCC is just lying there "oh, er, this really isn't something we can involve ourselves in". FFS, this is the whole reason that the ACCC exists!!!

      So yeah, end rant, back on topic... the ACCC has the power to act in a situation over misuse of the Linux name as you describe, but they will not ever actually get off their arses and do something!

      --
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    3. Re:The good, the bad and the ugly by Anonymous Coward · · Score: 1, Interesting
      No, this will mean that they can't act. Anyone is free to write their own OS, call it Linux and then either sell it on or complain loudly about how demonstrably buggy Linux is.
      No, that would be a trade description issue. Linux already has a clear meaning without being a trademark, just as any other commonly-used word does, so far as Aussie consumer legislation is concerned. I can't sell you a brick and claim it is a "vacuum cleaner". I can't sell you DOS and claim it is "Linux".
  2. Oy Weh! by putko · · Score: 4, Interesting

    This one is so awful. From the looks of it, Linus Torvalds was forced to play the trademark game, because of a slimeball lawyer.

    But it appears that because he didn't defend it from early on, he's now unable to claim it in Australia. So he should have been demanding money from all the Linux-name-using folks all these years if he wanted to become the trademark.

    How ironic: to frustrate a lawyer slimeball at the behest of his users, Mr. Torvalds makes himself look silly in front of the court.

    To get an idea of how scummy the first lawyer was:

    Torvalds didn't plan on gaining trademark protection for the word "Linux" when he began work on his OS, but by 1996 he started wishing he had. That's when William R. Della Croce Jr. of Boston first started demanding 10 percent royalties on sales from Linux vendors, based on a trademark claim he had filed in 1994. The Linux kernel was still free software, but according to Della Croce, the name itself was his property.

    That's 10 percent! What a parasite! It makes me think he deserves the Mr. Hands treatment.

    --
    http://www.thebricktestament.com/the_law/when_to_s tone_your_children/dt21_18a.html
  3. Re:Stupid question, but why linux? by DoktorTomoe · · Score: 1, Interesting
    A web professional I know once printed the following sentence on orange cards he handed out anytime a customer tried to "improve" his work:


    Some people buy a dog but keep on barking themselves


    You, a "business woman" (altought I might doubt this one), are a managerish type. You have obviously no idea of IT. Let your IT staff decide, they know better (and they might even have the time to distinguish "free" and "free" for you). If you do not have an IT staff, well, bad luck. Ask the 17-year-old guy/gal who comes around and fixes your computer, removes spyware on a regular basis ... you have no one who maintenances your system? Get the fuck out of the network - your computer likely is infested and a frequent member of spambot networks.
    --
    Screw the FSM - Real geeks believe in the Invisible Pink Unicorn
  4. Re:Article text in full by Anonymous Coward · · Score: 1, Interesting

    Lol, im a australian Linux User, and I can tell you all that trying to get through any red tape in this country is a nightmare. The best thing to do is keep trying, and give them a list of evidance so big, theyll just give up trying to read it. Apart from that, microsook could also be pulling the goverments strings, tho why theyd stop linux being trademarked is beond me...

  5. John "maddog" Hall and RMS on "Linux" by Anonymous Coward · · Score: 1, Interesting

    That is a shame that Linus was not able to trademark "Linux" in Australia. John "maddog" Hall made some interesting and informative comments recently about the Linux trademark issues and using the Linux name in general. Richard (rms) Stallman also has some interesting comments in the same article "The Many Faces of Linux".

  6. Re:Stupid question, but why linux? by Itchy+Rich · · Score: 2, Interesting

    Maybe it is a wrong impression, but that is what a good business woman like myself sees.

    A good businesswoman would know how to research the comparative costs of two options, she'd also know when to delegate a decision to a qualified professional rather than making a poorly informed decision.

    If this is a serious post, rather than a wind-up, then it sounds like you're trying to find some information. However this is the wrong forum to do that. Slashdot is supposed to be for discussing news.

    Can anyone suggest an unbiased place for non-technical people to learn about the differences between MS (I assume) and Linux?

  7. Windows(tm) in Australia ? by Antiocheian · · Score: 2, Interesting

    Does anyone know if "Windows" is a registered trademark in Australia?

  8. FOSS and trademarks by james_gnz · · Score: 2, Interesting

    Trademarks aren't new to FOSS, and I can't imagine the Linux trademark being restricted as severly as the Mozilla or AbiWord ones:

    If an individual or organization is creating a Community Edition of Mozilla Firefox or Thunderbird, it must use the names "Firefox Community Edition" or "Thunderbird Community Edition" to identify this software. Mozilla Community Edition Policy
    ... AbiSource freely licenses the use of certain of its trademarks solely in combination with the suffix "Personal" when applied to derivative works based on an AbiSource GPL product. Thus, for example, you are free to use the mark "AbiWord Personal" in connection with derivative works that are based on "AbiWord". AbiWord Trademark Usage Guidelines

    (These are the only cases automatically allowed, other use requires explicit permission.)

    (Unlikely IMHO) worst case scenario if "Linux" were trademarked:
    Debian and Fedora are based on Linux®. "Linux" is a trademark of Linus Torvalds.
    People would still call them Linux anyway, it wouldn't be the end of the world.

    I do think that it might make things easier to automatically allow any person, company or organisation to use the trademark prefixed by their own name for derivitive works, e.g. "Debian Mozilla", "Debian AbiWord" for Debian's versions of each. That would make things clear enough, I think.

    However, for anyone who's in favour of unrestricted usage of "Linux" (or any other FOSS name), consider Sys-Con Media and their LinuxWorld magazine (Slashdot story). It's lucky that the editorial staff were willing to put their jobs on the line to do something about it.

  9. Basis of the application must be sound by panurge · · Score: 3, Interesting
    I've written before about trademarks on Slashdot, and although IANAL, I have done enough trademarks unassisted that I might just have a clue...

    The point about a trademark is that it is YOUR mark that indicates that something is in some way YOUR product. As I have said before, I believe that there is no incompatibility between FOSS, GNU and trademarks because trademarks are just a way of identifying the source of things - they are totally different from patents and copyright. In principle, it is absolutely right that Linus, who originated it, should be able to trademark the name Linux. By enforcing the trademark, he can effectively "quality check" or stamp things with his imprimatur. If someone else produces a crappy Linux/Gnu distribution, he should have the right to stop them calling it Linux. They can still publish it and say "Uses Linux(TM) Kernel 2.6. Linux is a registered trademark of Linus Torvalds". They just can't call the product Shit Linux, or whatever. Equally, if someone else produces a good distro, he should be able to exchange pieces of paper which basically say "So long as you are good guys and recognise my principles, you can call your distro Nice Linux", and one from the supplier saying "Dear Mr. Torvalds, we recognise your trademark, thank you for allowing us to use it." If you think about it, this is clearly a Good Thing. It helps create a community of trust based around a government agency, at relatively low cost.

    So what went wrong in Oz? Well, IMHO the error Linus made was in not making use of the name Linux as a trademark earlier, which means that it has in reality become generic in many places. He needs to show that it really does connect back to him. Submitting letters from suppliers of Linux distributions available in Australia saying "We recognise that Linux is a trademark of Linus Torvalds, he licenses us to use it, and we are very unhappy about these people who use the name without permission" would be a start.
    But in practice, if the name has been in general use for years and has not been defended, it would be a hard case.

    --
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  10. Re:vitriolic? by mysticgoat · · Score: 3, Interesting

    This response did not bother LMI. They were basically protecting the name from abusers by claiming it first. If they can't restrict use of the term, neither can anyone else.

    This is an excellent point, and one not mentioned in the article. Did the LMI construct their case with deliberate weaknesses to assure this result? A problem with FOSS is that institutions governing ownership of IP are designed to establish and protect specific property rights; they have no mechanism for assuring that a specific property is to be free of any such encumbrances. So it almost seems like the best way of assuring no one can trademark "Linux" is to use a kind of null hypothesis approach: argue before the court that it can be trademarked in such a way that the court has to look at evidence that shows a trademark should be denied.

  11. Re:Using Wikipedia as a reference is a Bad Idea... by mysticgoat · · Score: 2, Interesting

    I'm certain that many publishers of "anti-evolution books" have spent a few dollars to assure that the work is an accurate portrayal of the belief system it purports to represent. Can't afford to put out a book that insults the intelligence of its readers-- that would be a bad design wouldn't it?

    Which demonstrates that there is a big difference between accuracy and truth in many areas. This borders on a pet peeve of mine, where "authoritative" is mistaken for "scientific".

    A mild suggestion: your posts would seem more authoritative if you used a spell checker on words like "authorative". Traditional desktop dictionaries still work quite well for this, and can be found in used book stores at very low cost. :-)