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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."
The rejection may be on shaky grounds, but the letter was hardly vitriolic. It is firm, and laid out the causes for rejection in a clear manner (caveat : IANAL).
Anyway, using wikipedia and google to bolster your application may be stretching it a bit...but hey what do I know
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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?
that they were using Wikipedia and Google to prove the references. They are good for us people, but in a court.......no way !!
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.
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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_
This passage here looks like the lawyer failed to do his job properly: It is not clear from the declaration in what way Mr Jeremy Malcolm is authorised and qualified to make this declaration on behalf of Mr Linus Torvalds. It should be a routine task to provide documentation that satisfactorily answers that question before it's even asked. Probably a document with Linus' signature (and some official confirmation of its authenticity, such as by a notary public along with a so-called apostille) would have done the job.
I've opened the PDF file of the IP Australia letter, and the examiner says that the decision could be reconsidered on the basis of better evidence. That means some more effort will have to be put into this than printing out a Wikipedia article and a few pages of Google search results. A key question will be "the date when use of the trade mark commenced".
The article was poor, but the summary on /. was retarded. It didn't took a bad article, misunderstood it, spun it in a way seemingly designed to misdirect attention, and failed to convey the important information.
The bottom line is - Linus (or possibly an Australian LUG, the article wasn't entirely clear) was afraid that someone might trademark Linux and do Bad Things with it. So they initiated an attempt to trademark it for themselves, and the relevent authority told them not to be silly, the term was clearly generic.
This is great. First, it's a sign of sanity - all too rare in government bodies in charge of intellectual property protection. Second - it's ten times better for the term to be un-trademarkable than for it to be trademarked, even in the hands of someone theoretically trustworthy.
So, to sum up: 1) You can't trademark the term Linux in Australia. 2) This is a good thing.
Why was this moderated "Troll" when it was clearly humour?
TW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
The letter doesn't seem terribly "vitriolic" to me. Obviously, someone has never received a letter from a lawyer.
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Actually, that smells more like incompetent lawyer than bad government agency. The Australian trademark mob does have a bit of a reputation for being quite firm with registrations - they must be genuine and proper and not half-assed. Any trademark lawyer worth his salt here would know that, and draw up a proper application.
If my students cite Google and Wikipedia as primary sources of reference in the academic papers they submit to me, they fail, and I send them back for a re-write (at their option). Same should apply for trademark applications. What sort of half baked cowboy is this guy?
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The editors sole job here is to judge which submissions, usually by mentioning Microsoft and/or OSS, will incite 'debate' - i.e. receive a lot of posts, supporting advertising revenue.
Slashdot is over...
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
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.
Panurge has posted for the last time. Thanks for the positive moderations.
Unfortunately, as you have failed to demonstrate your authority as an expert in information integrity, I am forced to disregard your comments under the assumption that unless you have some sort of verifiable expert credentials, you're a babbling idiot. ;)
Please present your credentials and prior performance in identifying babbling idiots. Until such time I cannot take your statement in good faith.
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