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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."

5 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 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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  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.

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  3. 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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  4. 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.