Slashdot Mirror

← Back to Stories (view on slashdot.org)

Debian Questions Trademark Policy

Posted by CowboyNeal on from the precautionary-measures dept.

An anonymous reader writes "The OSS/developer community at large is paying more attention to the trademark issue, especially since Linus Torvalds bid to trademark the name 'Linux' in Australia failed recently. Branden Robinson, Debian's project leader, says the current trademark policy needs updating to ensure it has the appropriate level of protection against legal challenges. Robinson said there are various questions that project members must address when deciding how to change the policy. These include whether Debian Linux should have a trademark at all, and whether the trademark can be used to penalize those who 'prey upon' the community."

30 of 82 comments (clear)

  1. Trademark by nudeatom · · Score: 2

    Does anyone have an objection to Linus holding the trademark to the "Linux"? If so why? Im not a lawyer and this IP stuff quite frankly goes over my head.

    --
    Yeah right, Like Im gonna write a sig.
    1. Re:Trademark by majjj · · Score: 2, Informative

      " Intellectual Property Australia said the word "Linux" was not distinctive enough to be trademarked and was similar to other trademarks owned locally. " This is the reason given in the article... dunno what it means.. someone plzz elaborate -- majjj

    2. Re:Trademark by nudeatom · · Score: 4, Interesting

      I dont want to start a flamewar, but surely "Linux" is more distinctive than "Windows", "Apple", "McDonalds" etc etc

      --
      Yeah right, Like Im gonna write a sig.
    3. Re:Trademark by cbreaker · · Score: 2, Insightful

      Yea, I was thinking the same thing. There was no word "Linux" before, whereas all of your other examples plus countless more trademarks are very common words.

      --
      - It's not the Macs I hate. It's Digg users. -
    4. Re:Trademark by black+mariah · · Score: 2, Informative

      No. No it's not. This is where the double edged sword of GPL in the business world rears its head. Linux was found to not be distinctive because there are already so many companies that use the mark freely. How many companies were called "Apple Computers" before they got the trademark? How many "Microsoft Windows" were there? Compare that with how many companies used the word "Linux" in their product names before the Australian application. Red Hat, Debian, Suse, Mandriva... the list goes on. There are so many distributions and have been for so long that coming in only now to try and protect the mark is a waste of time and money.

      It puts the Linux world in a Catch 22. Either you argue that the mark is valid after over a decade of free use by anyone, thereby saying that you would support submarine litigation and/or licensing of the Linux name to companies that were previously using it, or you admit that the mark is invalid and nobody has the right to control it. There is no in-between on the issue.

      --
      'Standards' in computing only impress those who are impressed by things like 'standards'.
    5. Re:Trademark by thebdj · · Score: 2, Insightful

      I think the most important reason that Linus got rejected and surprisingly hasn't gotten rejected more places is because he has quite frankly waited to long. When a term becomes generic it is sort of hard to hold a Trademark over anyone and make a big fuss about it. It may vary by different countries but the same term can be trademarked multiple times so long as they are not crossing field, it is also important to rememble that symbols can be trademark if they are shown to be in someway unique.

      Seriously, I think that the term Linux has been in use so long that it has become a fairly generic term. While protection of the name may be somewhat important, the fact that it is in use and fairly generic would prevent others from trademarking it, where it isn't trademarked (or should at least).

      --
      "Some days you just can't get rid of a bomb."
    6. Re:Trademark by richlv · · Score: 2, Insightful

      actually, it's not only "Microsoft Windows" - it is plain windows that is considered an infrigmns@#&%@. whatever that word is spelled :)

      remember lindows ?

      i really believe that passing around trademarks for common words is wrong and that's exactly what's happening.

      --
      Rich
    7. Re:Trademark by Haeleth · · Score: 3, Informative

      Seriously, I think that the term Linux has been in use so long that it has become a fairly generic term. While protection of the name may be somewhat important, the fact that it is in use and fairly generic would prevent others from trademarking it, where it isn't trademarked (or should at least).

      With due respect, you clearly don't have the faintest clue what "generic" means.

      Generic is when you use something that might be a trademark to refer to anything vaguely similar. For example, in Britain it's common to use the word "hoover" to refer to a vacuum cleaner of any brand: you have Hoover hoovers and Dyson hoovers. What that means is that "hoover" is becoming generic, and soon it might get to the point where Dyson could actually describe what they were making as hoovers, and Hoover wouldn't be able to sue them for it.

      Likewise, Xerox have had to go to tremendous efforts to protect their trademark: if you stopped talking about copiers and started talking about xeroxes (of any brand), then the Xerox mark would have become generic. But we don't, we talk about copiers: so Xerox is not generic these days.

      Now, is Linux generic? Of course it isn't! When you talk about Linux, you are talking about an operating system based on the Linux kernel. You wouldn't say "Microsoft Windows is a popular linux", or talk about the "FreeBSD linux", or say "OS X is based on the Mach micro-linux", because the generic term is "operating system" or "kernel", and "Linux" is the unique name for a particular kernel used to power a particular set of operating systems.

      Sorry, but the Australians called it wrong this time. There may well be valid arguments against a Linux trademark, but genericity ain't one of them.

    8. Re:Trademark by Ruprecht+the+Monkeyb · · Score: 2, Informative

      Actually, companies have to be pretty diligent. Xerox people used to get their knickers in a twist when someone used 'xerox' as a verb, and thier sales and technical people were required to correct you -- you weren't xeroxing something, you were photocopying it. See also: Band-Aid brand adhesive strips, which is awkward but necessary as band-aid became common vernacular for any type of bandage.

      It's not necessarily cut and dried with Linux. It has become so widespread in so many flavors, distributions, functions and systems, that it really has taken on some generic qualities. Technically minded folks understand the difference between the kernel and the rest, but most, if not all, of the companies selling services and products for Linux do not make that distinction.

  2. Has it happened yet? by Crixus · · Score: 4, Interesting

    Have ANY of these important linux questions been answered in a court yet? i.e. How enforcable is the GPL, and IS "linux" a trademark?

    --
    Ignore Alien Orders
    1. Re:Has it happened yet? by mr_tenor · · Score: 4, Insightful

      If the GPL is "not enforcable", whatever that means, then you are using my copyrighted code without a licence and I sue you :)

    2. Re:Has it happened yet? by m50d · · Score: 5, Insightful
      How enforcable is the GPL

      So enforcable no-one's dared challenge it. There have been plenty of companies with the motivation to go up against it if they thought they stood a reasonable chance of winning, and none of them have tried.

      and IS "linux" a trademark

      In some countries, yes, definitely, Linus only got the trademark after a legal battle when someone else trademarked it. However, in Australia it isn't. It just depends on local laws.

      --
      I am trolling
    3. Re:Has it happened yet? by Bios_Hakr · · Score: 2, Interesting

      Or your code is declared Public Domain and everyone gets to use it with no license. Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.

      --
      I'd rather you do it wrong, than for me to have to do it at all.
    4. Re:Has it happened yet? by rm69990 · · Score: 2, Interesting

      I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions. The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide by f, g, h and i.

      There is absolutely NOTHING in case law to support the fact that if you loosen your restrictions too much you lose your copyright. Of course, if there are any laws like this or caselaw like this and you would like to prove me wrong, please do so.

      To say that if a license is found to be invalid that the code it covers would go into the public domain is ridiculous. You have obviously been listening to SCO's and Microsoft's lawyers a little too much. If Microsoft's Shared Source license is found to be invalid, will Windows be put in the public domain? If so, please inform them, as obviously them nor I are aware of any clause or case law which would support your theory.

      If anything, BSD licensed code would go first, not the GPL. When Novell/USL sued the University of California over BSD and later faced a possible copyright infringement suit for not complying with the BSD license (which is way, way, way more permissive than the GPL), they quickly settled and even paid the University's legal fees. You should inform them that they were in-fact wrong about copyright laws work, and that that code is in-fact public domain.

    5. Re:Has it happened yet? by mpe · · Score: 2, Interesting

      Or your code is declared Public Domain and everyone gets to use it with no license.

      This was one of SCO's arguments. Which dosn't actually appear to have any standing in either statute or case law anywhere on the planet. If a court were to rule a distribution licence "invalid" then the standard provisions of copyright apply. Thus it would be pointless for any party to even bring a suit to attempt to do this, they'd have nothing to gain.

      Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.

      Whilst a judge may have the power to reassign copyrights. Between parties in a lawsuit they most likely do not have the power to destroy them.

    6. Re:Has it happened yet? by mpe · · Score: 2, Interesting

      I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions.

      Copyright says that you need the permission of the copyright holder in order to make and distribute copies.

      The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide by f, g, h and i.

      Having a published licence is an advantage to third parties, since they know what terms and conditions the copyright holder will grant permission to copy and distribute. Rather than having to negotiate permission with the copyright holder. It is also an advantage to the copyright holders, since they do not have to negotiate terms and conditions with every third party who might want to make and distribute copies of their work(s).
      Copyright law gives copyright holders a great deal of choice as to terms and conditions. (Including using an already existing set of terms and conditions, such as the GPL.) About the only exception would be if they required some illegal action as a condition.

      To say that if a license is found to be invalid that the code it covers would go into the public domain is ridiculous. You have obviously been listening to SCO's and Microsoft's lawyers a little too much.

      In some cases SCO's argument appears to be that simply by their disagreeing with a licence the work is in the Public Domain.

  3. See Also... by Mike+Connell · · Score: 4, Informative

    The logo these guys (still) have elektrostore.se

    some debian-legal discussion

    --
    Tales from behind the Lagom Curtain
    1. Re:See Also... by linhux · · Score: 3, Interesting

      Actually, if you read the mail (and you seem to know Swedish, so you could), you'll see that the poster claims that the logo in question is identified as a rotated Debian logo even when compared pixel-by-pixel. Simply using the same Illustrator brush shouldn't produce that kind of similarity, should it?

    2. Re:See Also... by Saven+Marek · · Score: 4, Funny

      That begs then to ask the question why is the debian logo doing in Illustrator as a stock brush? how long has it been there?

      Can we petition Illustrator to have this removed. Even if we don't have the legal trademark over it I'm sure the bad publicity for Adobe infringing on IP of Free/Open Source Software would persuade them.

      Whats that site again that lets you run petitions?

    3. Re:See Also... by rebeka+thomas · · Score: 2, Insightful

      the poster claims that the logo in question is identified as a rotated Debian logo even when compared pixel-by-pixel. Simply using the same Illustrator brush shouldn't produce that kind of similarity, should it?

      Illustrator has the facility to draw spirals based on a set of mathematical criteria. The default spiral settings plus the default brush used also makes the exact same debian logo. There wasn't much creativity put into making that specific debian spiral.

      A free operating system logo made on a non-free graphics app running on a non free operating system, created with non-free default settings and a non-free font used throughout debian. That's just wrong.

      --
      RST
  4. Responsibility by Kawahee · · Score: 3, Interesting

    It's not up to the open source community to look after their own trademarks and stuff like that. There should already be initiatives for non-for-profit or (cyber)community-minded groups like the OSS community to get a hold of trademarks for non-for-profit reasons. I live in Australia, and I think we've got fair(ish) copyright laws, but not something like this. Does anyone live in a country that has this sort of system/law?

    --
    I'll subscribe to Slashdot when I see a month without a dupe, a typo, or an article the "editors" didn't read.
  5. Re:Why shouldn't they trademark their works? by mr_tenor · · Score: 3, Informative

    You are confused. trademark is a monopoly claimed over the usage of a label (eg - the name "Debian") so that people can't pretend to be you or otherwise create confusion or damage your reputation.

  6. Should it have a TM? Yes. by panurge · · Score: 4, Insightful
    I don't regard this as even a question that should need asking. If it isn't already, the name Debian should be a trademark. And if it can't be on its own, then they should get in touch with Linus, agree to recognise one another's marks, and trademark Debian Linux as a TM.

    In the meantime, signal your intentions by updating every internal and external document you can find to read Debian(TM). Same goes for Ubuntu.

    Remember: a trademark protects the name, not the content. Trademarking the name of a distro does not attempt to take away or add anything to the copyright or software licences of any component. It just prevents evil corporate bastard or pakistani virus spreader from calling his CD of spyware, viruses and trojans "Debian".

    Is there any trademark attorney out there who would help these people pro bono or at reduced rate? If there is an appeal, I would certainly contribute to the filing costs.

    --
    Panurge has posted for the last time. Thanks for the positive moderations.
    1. Re:Should it have a TM? Yes. by mjg59 · · Score: 3, Informative

      Debian already has a trademark. In the US, it's held by Software in the Public Interest on behalf of Debian. Every page on the Debian website states this in the footer.

  7. Robinson's full post by Chris+Pimlott · · Score: 4, Informative

    Here's Project Leader Branden's Robinson's full (much longer) comments on the trademark issue.

    His main point seems to be that trademarks can lead to forking, whether it be forced by the trademark holder or voluntary, and that these trademark forks can lead to confusion (Why are these forked version unofficial? Is it really the same product? Which is the 'best' version?), inefficiency (harder to share code between forks) and fragmentation of the open-source community. Moreover, the implicit threat of trademarks - play by our rules or lose the name - seems at odds with the ethos of freedom to make changes that at the core of the free software movement.

    He ends with three main questions that Debian will have to resolve:
    * Why even have a trademark? What protections does it give that are useful for Debian? How do these protections different internationally, within dozens of different national jurisdictions?

    * What is the approval process for using the Debian trademark? Should some groups get automatic approval, or should Debian leverage its trademark to compel vendors to contact Debian?

    * Can we apply the Copyleft principle to trademark? That is, how can we turn trademark on its head and make it a tool to promote the open and free use of Debian and other projects instead of a device to restrict the rights of others?

  8. They don't have an option... by Whafro · · Score: 4, Insightful

    Regarding the notion that Debian might not want to "have a trademark at all," they really don't have any choice, strictly speaking.

    Trademarks aren't trademarks simply because they've been successfully registered. They're trademarks anyway, but registration affords some ADDITIONAL protections, beyond what a non-registered trademark gets.

    Any mark that's used in commerce is automatically given trademark rights and protections under common law in almost every western nation, including the US and Australia.

    The real issue in this case is that trademark protections are weakened when they are not protected by the owner of the mark. So if Debian lets anyone use "DEBIAN" for commercial purposes whenever they like, it will be hard for them to then go and protect that mark in the future.

    Hell, depending on the examiner, it may already be unregisterable due to lack of protection.

  9. Re:Too Late... by mjg59 · · Score: 2, Informative

    While I agree with a lot of what you're saying:

    I guess at one point they managed to get Trusted Debian to change their name, but then Bruce Perens immediately backpedaled with his "fair to all businesses" policy.

    You've got the order very wrong there. The Trusted Debian thing happened in 2003, whereas Bruce's policy was announced in 1998.

    When Bruce started his little group of people to support Debian, all hell broke loose. A third of the developers went with Bruce to carry on the tradition of separating business from OSS, a third jumped on board with Ubuntu, and the other third just sat around expecting money to fall into their laps.

    What little group? The last Debian-related thing Bruce was involved in was Userlinux, which has been a miserable failure. Approximately no Debian developers were involved. A small number of Debian developers (including myself) have some level of involvement in Ubuntu. I don't think we expect to make money out of it, and it doesn't diminish my involvement in Debian. If anyone got involved in Debian in the hope of making money, then they're sadly deluded and I don't seem to have met them yet.

  10. It's never going to happen (Linux Trademark) by oliverthered · · Score: 3, Insightful

    IT's too late, the horse has already bolted, if only people would have listend to RMS and called their distributions GNU-Linux Linus may still have had a chance.
    The reason you can't trademark Linux is because well, there's Redhat Linux (That's GNU-Linux + lots of other stuff), and Linux programming 2nd edition (and it's not about kernel programming) and a quick google for linux turns up

    Linux
    www.microsoft.com/getthefacts Read in-depth 3rd party performance analysis of Linux & Windows.

    as second on the list!!, and that's not about the Linux kernel either.

    --
    thank God the internet isn't a human right.
  11. Nobody "called it wrong" by schon · · Score: 2, Interesting

    the Australians called it wrong this time

    No, they didn't. The problem was that the person who filed the application was incompetant.

    Besides the fact that the application referred to Wikipedia (which has been discussed to death,) the reference described "Linux" as a generic phrase for an operating system kernel - which is precisely your argument.

    Now, you and I know what Linux referrs to, but the trademark examiners don't, and it shows from their response:

    "The entry from the Wikipedia encyclopaedia indicates 'Linux is a computer operating system and its kernel' ... demonstrating generic use rather than trademark use."

    So, the way the application was written, it sounded (to the examiners) that the term "Linux" was in fact a generic term, rather than refering to what you and I know as Linux. If the application pointed to a source that said "Linux is the computer operating system originally developed by Linus Torvalds, and currently being maintained by millions of volunteers around the world", then things might have turned out differently.

    Your blame is misplaced.

  12. Really? by hummassa · · Score: 2, Interesting

    Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.
    Not in my jurisdiction. (and I am/was a paralegal)
    Nor in any jurisdiction with civil law and a copyright law similar to what is dictated by the Geneva convention. In those countries, the ONLY things in public domain are those (a) that do not involve creative work and (b) those whose copyrights terms expired.
    And to boot, the intent of the GPL is NOT "to allow people to freely use your code", it is to allow that your code stays free all the time -- and this can be determined by any judge who takes ten minutes to read the GPL. Or one minute to read its preamble.

    --
    It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048