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The Linux® Trademark - Tempest in a Teapot - Updated
Tuesday, August 16 2005 @ 10:42 AM EDT

I got email on this and I see mucho anguish on Slashdot. Why, oh why, some wonder, would lawyers be sending out letters in Australia, asking folks using the mark LINUX to formally license the mark? And *pay* for it? What is this? A violation of the spirit of openness? Doesn't the GPL mean you can do whatever you like with the name? Isn't Linus' policy that people can pretty much use the Linux name as long as they are decent about it?

First, it's coming ultimately from Linus. There is a web site you can visit to verify that policing the mark has been given to the Linux Mark Institute by Linus, and the page is hosted by OSDL:


As stated in our articles of incorporation, The Linux Mark Institute ("LMI") is an organization established "to protect the public and Linux® users of the world from unauthorized and confusing use of the Linux mark and to issue proper licenses to authorized users of the Linux mark." LMI is not designed to generate profits for anyone, which is why Linus Torvalds has given LMI primary sub-license rights for the mark. We work to protect legitimate uses of the LINUX trademark without burdening Linus Torvalds or any one entity with the financial responsibility of protecting the LINUX community's use of the mark.

The express and only purpose of this organization is to set up a simple, self-funding procedure by which interested companies and individuals developing Linux operating system products and those desiring to sell services, accessories and related Linux paraphernalia can obtain a non-exclusive and simple trademark license for the proper use of the mark.

Jon Hall of Linux International is overseeing disputes about this trademark effort for Linus. I think we can trust them both. So if they are doing this, we can safely assume they have good reasons. What are they?

Let's think about what trademark is and what it is for. Please remember that Linus didn't write trademark law. It is what it is. He can only work within the framework that others have established. Having said that, why would he care about the name Linux and how it is used? And what could happen if he doesn't show an interest in how the name is used by others? I've collected some information for you, so you can breathe normally again.

Why Linus Needs to Care

I don't know about you, but I get disturbed when I see antiLinux folk using the name Linux. For example, I thought it was loathsome to call the newsletter Linux Business Week, when all it was about was antiLinux material. I gather Business Week didn't much care for the name either, so they had to change the name. But what about Linux Insider? All they ever seem to report is antiLinux news. If I owned the Linux trademark, I'd want to make them stop, if I could.

Or let's imagine for a moment. What if Microsoft decided that the ultimate purpose of its Linux Lab (note the name) is to put out a version of Windows, Windows apps running on a twisted, poorly functioning pseudo Linux kernel, and they decide to call it Windows Linux? I know. Impossible. But what if? Or SCO decides their next product line will be called Cymphonix Linux even thought it's actually Unix? I understand Cymphonix is a Linux product, actually, and they are now in a partnership with SCO, so let's just imagine it for a sec. Or what if some porn website sets up a Linux Freaky Sex site or something awful? Could Linus stop them from using the name?

Such use would fall under the legal category of dilution, and here's a page that explains what that is with respect to the Federal Trademark Dilution Act of 1995, which expanded rights for famous marks beyond what the Lanham Act grants to all marks:

Dilution causes of action are normally brought when the defendant's use of the mark causes either
* "Blurring", by which the connection in consumers' minds between the plaintiff's mark and the plaintiff's goods or services is weakened; or

* "Tarnishment", which means that the defendant's use is unsavory or unwholesome, or the mark is used in connection with inferior products.

Obviously, Linus doesn't want either thing to happen to the good name of Linux. But can he stop it? Only if he has a protectable trademark on the name.

When is a Trademark Infringed and How Does is Work?

Bitlaw explains trademark infringement:

A mark is infringed under U.S. trademark law when another person uses a device (a mark) so as to cause confusion as to the source or sponsorship of the goods or services involved. Multiple parties may use the same mark only where the goods of the parties are not so similar as to cause confusion among consumers. Where a mark is protected only under common law trademark rights, the same marks can be used where there is no geographic overlap in the use of the marks. Federally registered marks have a nation-wide geographic scope, and hence are protected throughout the United States.

Trademark law isn't like copyright. It's not automatic. Under trademark law, you simply must control the use of your mark by others or you can lose your mark, even if you've registered it. Bitlaw explains what you have to prove to win a trademark case:

The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff. [emphasis added]

One of the ways you can show you have a protectable mark is to show that you license it to others using it, that not every Tom, Dick and Harry is out there using the same mark. If they are using it every which way, in what way does the name belong to you? That is what the trademark office or court will ask you. Here's a snip from "Legal Guide for Starting and Running a Small Business" by Fred S. Steingold, on what to do to police your mark properly, one section of a longer list:

* Take prompt legal action if other businesses use your trademark without permission. A trademark may become weakened or even generic if others use it to describe their products and you do nothing about it. You or your lawyer should send a letter by certified mail (return receipt requested) demanding that the infringement cease. If your demand is ignored, be prepared to go to court to seek an injunction - but first do a careful cost/benefit analysis to satisfy yourself that it's worth the expense.

* If you discover that a newspaper or TV program has improperly used your trademark, send them a letter. Keep a copy in your records as proof that you have consistently enforced your trademark rights.

Wikipedia confirms:

Failure to maintain consistent quality can lead to abandonment of a mark, when the law will no longer protect the trademark because it has ceased to function as an indicator of a particular product. Marks may also be abandoned by "naked licensing", which involves the owner granting rights to use the mark to another party without sufficiently controlling how or on what they use it. The mark is then released for general use. (see also below under Policing Trademarks) . . . .

It is important to note that although there are systems which facilitate the filing, registration or enforcement of trade mark rights in more than one jurisdiction on a regional or global basis (eg. the Madrid and CTM systems, see further below), it is currently not possible to file and obtain a single trade mark registration which will automatically apply around the world. Trade mark laws are territorial in nature and generally apply only in the applicable country or jurisdiction, a quality which is sometimes referred to as ‘territoriality’.

The last point is why separate registration and enforcement will have to be by country. Australia's trademark law and policies are explained here.

What's a Trademark For?

The International Trademark Association (INTA) has some great information on the subject, as you would expect. Here's what they say the differences are between trademarks, copyright and patents:

A Trademark (®, ™, SM) protects a word, phrase, symbol and/or design used with a product or service on the market. A trademark is often referred to as a brand. Trademark rights may continue indefinitely, as long as the mark is neither abandoned by the trademark owner, or loses its significance in the marketplace as a trademark by becoming a generic term. For a full definition please see FAQ #1.

A Copyright (©) protects the original way an idea is expressed, not the idea itself. It includes artistic, literary, dramatic or musical works presented in a tangible medium such as a book, photograph or movie. This protection is given to works to prevent unauthorized copying. The general rule for a work created on or after 01-01-1978, is that the copyright lasts for the author's lifetime plus 70 years after the author's death, or 95 years after publication for a work made for hire.

A Patent protects a new and useful idea, which includes a process and/or machine. It is granted by the government, providing an inventor with exclusive rights to make, use and sell a patented invention. Patents have a fixed term, usually 17 to 20 years.

Why Licensing and - Gasp - Fees?

Here's INTA on licensing your trademark:

3. Why is a licensor required to exercise quality control over a licensee's goods and services?

Control is needed because a trademark represents the trademark owner’s reputation for goods and services of a certain level of quality, and consumers tend to rely on this reputation in making purchasing decisions. If a licensor does not exercise sufficient control over the quality of the goods and services offered by the licensee, the trademark may, in some countries (for example, the United Kingdom), become vulnerable to attack by the licensee or a third party. In other countries, such as the United States, the trademark may be deemed abandoned.

A license will provide for quality control by the licensor by including provisions such as:

* Trademark Usage - The licensor may specify the manner in which the trademark will be used on or in connection with the goods and services of the licensee and on advertising and promotional materials. The licensee may be required to obtain the licensor’s permission before using any new presentation of the trademark.

The fees are a method of demonstrating ownership and control. Linus didn't just wake up one morning and decide to cash in on the name. It's about doing what the law looks to when deciding if he has a protectable mark. The fees also pay for the adminstrative tasks involved in policing the mark, registering the mark in various places, and approving licensees, etc. The fees are incredibly low, by the way. Here's the LMI fee structure:

Sliding Scale.

An Annual Fee is applied to each sublicensed trademark. The fee is set according to two factors: A) the for profit/non-profit status of your company or organization, and B) the aggregate gross revenue you expect to earn in the next fiscal year for goods/services associated with the mark in question. Marks grouped in a brand are treated as a single mark.

Non-Profit Tier
Annual Fee = US$200

For Profit/Other Tier 1
[This is a "grandfather clause" for written sublicenses executed prior to August 1, 2004] Annual Fee = $0

For Profit/Other Tier 2
[Total projected annual gross revenue between zero and US $100,000] Annual Fee = US $200

For Profit/Other Tier 3
[Total projected annual gross revenue between US $100,000 and US$200,000] Annual Fee = US $500

For Profit/Other Tier 4
[Total projected annual gross revenue between US $200,000 and US $1 million] Annual Fee = US $1000

For Profit/Other Tier 5
[Total projected annual gross revenue over US $1 million] Annual Fee = US $5000

If you are making between $200,000 and a cool million using the name Linux, do you find it unreasonable that you pay a $1,000 to make sure the name continues to mean something? As you can note, you don't pay anything like that if you are a nonprofit. And you may not need a license anyway. In the US, there is a concept called fair use. If I write about Linux, for example, on Groklaw, I don't have to pay to use the name in a story. You don't either. There are preferred ways of indicating that I know it's a registered mark, however:

How to publicly acknowledge that Linus Torvalds is the owner of the Linux trademark.

Attribution Is For Everyone

If your use of the Linux trademark doesn't fall under the scope of the Linux Sublicense, you should attribute ownership of the mark to Linus Torvalds in two ways:

1. For each web page, advertisement, or publication, the first prominent appearance of LINUX should feature the "circle R" character adjacent to the X, as follows:


2. At the end of your web page, advertisement, publication or media broadcast, include the following text in a legible font and size:

Linux® is the registered trademark of Linus Torvalds in the U.S. and other countries.

But if I set up a business selling a Groklaw Linux for Lawyers distribution, let's say, then I'd have to pay to license the use of the name, or change the name. When I think about having to change the name, chancees are I'd rather pay, because the name has value.

Who Needs a License?

LMI has a very clear page all about this. Here's an excerpt:

Who needs a linux® license:

To protect a registered trademark, the owner is required to "police" or control the use of the mark by others, under penalty of loss of the mark. Others may use or refer to a registered mark in some circumstances without a license from the owner if it is for a so-called "fair use," or in other cases they may need to obtain a license for the use. Some examples may help clarify the differences. Linus and LMI are not trying to develop a revenue source from licensing, so our interpretation of the trademark laws may be a bit more liberal than those of other trademark owners.

Examples of Fair Use.

If you are a journalist interested in writing articles that include the term "Linux," you do not need a sublicense. If you are printing up pencils, stenciling T-shirts, or distributing coffee cups with a legend on them like "Linux®is the greatest!" or "Even my Mother uses Linux®!" this is normally considered "fair use".

Trademarks: Use Requiring A Sublicense.

On the other hand, if you plan to market a Linux-based product or service to the public using a trademark that includes the element "Linux," such as "Super Dooper Linux" or "Real Time Linux Consultants" you are required to apply for and obtain a low-cost sublicense from LMI. This is true whether or not you apply to register your trademark with a government.

So, breathing better now? Remember that it's patents that are the bad guys. We depend on copyright to protect and enforce our GPL rights. And trademark is just another word for a good name, a name that stands for something. It's worth protecting. If it gets diluted by use by those with antiLinux agendas, the name won't mean much in the end. And that would be a crying shame.

There's an established way to protect a trademark that is being followed by those delegated to do so. If we all cooperate, we can help Linus protect the good name of Linux.

Sadly, the world isn't a paradise, where everyone loves one another and no one would deliberately do harm to their neighbor. Laws are a coping mechanism, a way to build a protective wall. Linus has no choice but to build that wall. We have to share the planet with those we may not like, but we don't have to let them abuse our good names.

Speaking of abusing someone's good name, Jeremy Malcolm, the attorney in charge of sending out the licensing letters in Australia, has a long history of voluntary and pro bono work for the Internet and open source communities. This includes serving on the boards of the Internet Society of Australia, the Western Australian Internet Association, Electronic Frontiers Australia, the Society of Linux Professionals (WA) and the Australian Public Access Network Association. He also received the Community Award in the 2004 AUUG Australian Open Source Awards for outstanding contribution to the understanding of para-technical and legal issues surrounding open source within the Australian context. He isn't a Scientologist and never has been, by the way, although he believes in freedom of religion for all.

Don't you hate it when the mainstream media doesn't bother to check their facts? Why do what they do, then? The community stands for ethics, does it not?


For all of you who are still *positive* this is some kind of a "scam", I suggest you read what maddog wrote about it, posted to the Linux Australia email list. The poor man has spent $250,000 of his own money already, and the idea is to set up a self-supporting non-profit to carry the load. Read it and weep, those of you so quick to find fault, and then say you're sorry, please. Here's just a bit:

Since 1995, when an unfortunate incident in the United States showed us that the world is not made of altruistic people and companies, Linux International has been defending the Linux Trademark. At that time an entity had obtained a US trademark on the word "Linux", and was trying to obtain twenty-five percent of the REVENUES of companies that had the word "Linux" in their name, or in their product names. Instead of all the member companies fighting this battle individually, Linux International fought it and won. Unfortunately it cost us a lot of money to do this, despite the pro bono efforts of Gerry Davis, of the law firm of Davis and Schroeder.

Linux International has been defending the Linux Trademark for the world, which due to the costs of registering and obtaining International Trade Marks is VERY expensive. Linux International has spent over 300,000 USD to do this over the years. LI is a non-profit and does not have very much revenue, so some of this money has come from my own personal checkbook. While I can not say how much money I have spent on defending the mark per se, I can tell you that I have spent about 250,000 USD of my own money in keeping LI alive. I am not looking for medals or a chest to pin them on. I am only stating this to show people that this is not a "scam", nor is anyone making any money off this other than the international legal and trademark community, and I am sure that they are necessary and justifiable fees. Certainly Jeremy Malcolm has seemed to be above board and conscientious in all of our dealings with him, as has Jonathan Oxer and the rest of the fine people at LAI.

After a while the board of Linux International recognized the advantage of forming a separate non-profit, the Linux Mark Institute (LMI). We need LMI to be self-funding, and following trademark laws in the 200 countries of the world is very expensive.

You might also like to read Linus explain trademarks.

Linux® is the registered trademark of Linus Torvalds in the U.S. and other countries


The Linux® Trademark - Tempest in a Teapot - Updated | 912 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here
Authored by: robobright on Tuesday, August 16 2005 @ 10:53 AM EDT
Remember to makes links clicky...

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 16 2005 @ 10:53 AM EDT
s.b. "formally" I think

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 10:55 AM EDT
Thankyou for clearing this up Pamela. I know Jeremy, and he represented me once
for free when I was being threatened (wrongly) for defamation and was unemployed
at the time. He's a good man.

Jeremy is actually considered a leading light in the Australian Open source
scene, and many people in australia have been quite upset to see him being
rubbished so wrongly in slashdot for what really is just some legal work to try
and protect linux.

[ Reply to This | # ]

Corrections Here...
Authored by: robobright on Tuesday, August 16 2005 @ 10:57 AM EDT

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 11:01 AM EDT
I guess this is an example of where the Linux community for once doesn't feel
the need to go change the law.

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Groklaw Lurker on Tuesday, August 16 2005 @ 11:10 AM EDT
"...Or what is some porn website sets up a Linux Freaky Sex site or
something awful?..."

No, no! Not X-rated penguins baring it all before the world... :)

(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

Still Confused...
Authored by: drakaan on Tuesday, August 16 2005 @ 11:10 AM EDT
Okay...somebody please correct me, because this just doesn't feel right. If
create a distro, and it has the word "Linux" in it (Fu-Man-Chu Linux,
for example), and I write that name on a website, I pay $200.00 or I'm in legal

Somebody un-boggle me on this.

'Murphy was an optimist'
-O'Toole's Commentary on Murphy's Law

[ Reply to This | # ]

Linux distros need to pay?
Authored by: belzecue on Tuesday, August 16 2005 @ 11:11 AM EDT
Will many of the distros (e.g. on with Linux in their name need
to pay the not-for-profit fee to continue using the name?

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 11:13 AM EDT
What if Microsoft decided that the ultimate purpose of its Linux Lab (note the name) is to put out a version of Windows, Windows apps running on a twisted, poorly functioning pseudo Linux kernel, and they decide to call it Windows Linux?

Correct me if I'm wrong, not only would they be giving Linux a bad name, but by being Windows Linux, that would hurt their own cause by putting out a bad copy of thier own product, seems self defeating. But then there are people who still believe WIN95 is in beta. :-)

And how much open source is in Longhorn?


[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 11:23 AM EDT
From what I could gather from the /. comments, the AU LUG was sending out
nastygrams and asking for money from people that were NOT abusing the mark. No,
I did not RTFA because I am lazy and did not want to register.

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Malor on Tuesday, August 16 2005 @ 11:23 AM EDT
I've been using Linux for a very, very long time, (somewhere in the 0.8 kernel series) and I disagree completely that the anger is unfounded.

A non-profit usage of the Linux trademark should be $1/year, payable in advance for a 20-year term. It is just wrong to soak people who want to release GPL distros for $200 year. Talk about a slap in the face... doing all the work to build a distro for a specific purpose, but not being able to call it Linux without coughing up? That is a pile of crap.

I'd have no problem whatsoever with charging for-profit distros, like, say, Mandrake or Red Hat. And perhaps there should be a special mark for those who voluntarily choose to send in some extra money.

But the word Linux, while it can't be 100% free because of trademark law, should be licensed for the cheapest possible fee. I'm suggesting the $20 minimum, but even that might be too high. What if some guy in China who makes 25 cents a day wants to call HIS product Linux and distribute it in Australia? $20 would be a real hardship...$200 is totally unworkable.

Folks in Australia are right to be upset. The kernel itself, as Richard Stallman is so fond of reminding us, is only a very small portion of the overall system. The rest of userspace has inherited the kernel's name, more or less by default. A full, running Linux system has an absolutely huge amount of code in it that Linus didn't write, didn't manage, and isn't responsible for. Claiming a $200 toll just for writing the kernel is absolutely unreasonable.

I have steadfastly refused to use the term GNU/Linux, but for the first time, I'm seriously reconsidering that.

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 11:26 AM EDT
Thank you PJ. Nice to have everything explained so clearly :)

Ever thought of becomming a /. moderator, looks like they could use some help


[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: Anonymous on Tuesday, August 16 2005 @ 11:52 AM EDT
I suppose the creation of Linux-specific free open source programs with
"Linux" in the name, say SYSLINUX or SELinux, is officially over thus?
I for one can't see how anybody would agree to pay $200 a year for the pleasure
of being the author of a GPL:ed program.

[ Reply to This | # ]

PJ, you made me laugh
Authored by: inode_buddha on Tuesday, August 16 2005 @ 11:55 AM EDT
PJ, you made me laugh. I just realized who Jon Hall was, because I've been
calling him "maddog" for so long. It took me by surprise.


Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: seanlynch on Tuesday, August 16 2005 @ 12:02 PM EDT
So Darl will have to license Linux in order to sell his Linux License!

Isn't that special?

[ Reply to This | # ]

The Linux® Trademark - Way Too Expensive
Authored by: Anonymous on Tuesday, August 16 2005 @ 12:35 PM EDT
Time to donate a new name to the public domain so we can all use it for free. As
in BEER.

[ Reply to This | # ]

"SCO Announce: Linux Kernel Personality has been renamed...
Authored by: Saturn on Tuesday, August 16 2005 @ 12:41 PM EDT
... the 'Penguin-like Kernel Personality' due to trade mark licensing problems."

You can see it coming can't you :)

My own opinion, and very humble one too.
Which is probably why I'm not a lawyer.

[ Reply to This | # ]

The Linux® Trademark - Tempest in a Teapot
Authored by: sef on Tuesday, August 16 2005 @ 12:42 PM EDT

I remember, years ago, when BSDi did this. Actually, it was even slimier, because -- while some of the same people were involved -- BSDi did not invent BSD (neither the OS nor the name).

It still leaves an awfully bad taste in my mouth.

Here's the ironic thing: the people who will most abuse the GPL, by hiding the kernel as much as humanly possible, will not have to pay a dime, while those who are trying to "spread the word" suddenly have to start anteing up.

Neither beer nor speech, it seems.

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 16 2005 @ 01:02 PM EDT
So does anyone remember why un*x was spelled un*x? Hint. The Wikipedia article doesn't say much about it, but my recollection is that a big part was that AT&T/USL was sending nasty letters to people using the Unix® name without authorization. Hmmmm.

[ Reply to This | # ]

  • lin*x - Authored by: Anonymous on Tuesday, August 16 2005 @ 02:13 PM EDT
    • lin*x - Authored by: PJ on Tuesday, August 16 2005 @ 11:16 PM EDT
    • lin*x - Authored by: Anonymous on Sunday, August 21 2005 @ 01:08 PM EDT
  • lin*x - Authored by: Anonymous on Tuesday, August 16 2005 @ 06:28 PM EDT
So help an IANAL out...
Authored by: Anonymous on Tuesday, August 16 2005 @ 01:11 PM EDT

If I made a distribution called "Paranoia", in a "secure by default" configuration, with all sorts of security features added, for example, and then in the documentation noted that the kernel is based on Linux® kernel 2.X (whatever), and that Linux is a trademark or registered trademark of Linus Torvalds in the USA and other countries, and that the bulk of the other material is from GNU (or is it GNU®, needing its own attribution?), would there be any actual need for me, if I were an Aussie, to license the Linux trademark?

And what about a users group? Linux is a trademark that describes a particular operating system. A users group is not the basis for the Linux trademark. Further, does/did Apple go after Apple users groups over trademark issues? Does/did Microsoft go after Windows users groups? Solaris? (Are there any?) Etc.

And finally, what's with the sliding scale of fees? If the administrative fee is to cover the cost of licensing the various entities, then the little guy would actually be paying more, because it's harder to locate him, versus a company that's actively promoting and profiting from its versions of Linux. The big guy is probably well known and easy to police in comparison to the little guy. Therefore, the sliding scale of fees is specious. The bigger you are, the less effort is needed, and yet the bigger guy pays more because it's "reasonable". "From each according to his ability..."

[ Reply to This | # ]

Suggested Non-Profit License Fee
Authored by: Anonymous on Tuesday, August 16 2005 @ 01:22 PM EDT
Suggestion: A good price to charge a non-profit (e.g. LUG's et al) to license
the Linux trademark would be ... contribute code.

[ Reply to This | # ]

    The Linux® Trademark
    Authored by: Anonymous on Tuesday, August 16 2005 @ 01:33 PM EDT
    How long will it be before Groklaw becomes Groklaw®, now that Linux® has gone
    Thoughts about the price of everything and the value of nothing spring to
    To be safe I will use "Lin*x and Gr*klaw" from now on.

    [ Reply to This | # ]

    Authored by: Anonymous on Tuesday, August 16 2005 @ 01:46 PM EDT
    PJ, you mention in passing that
    [Jeremy Malcolm] isn't a Scientologist and never has been, by the way, although he believes in freedom of religion for all.
    Readers may be wondering why this is relevant, so allow me to elaborate a bit. Mr. Malcolm represented the Church of Scientology in legal action against some of its critics, which caused many /. posters to have a low opinion of him; as a result these posters jumped to the conclusion that his actions were not above-board. This seems to be a fairly even-handed statement about the CoS matter.

    [ Reply to This | # ]

    Authored by: m_si_M on Tuesday, August 16 2005 @ 02:00 PM EDT

    This is somehow related to PJ's article, so I don't post it under "OT".

    Some of you may know, that FOSS graphics software doesn't provide the use of spot colours, such as Pantone. The reasons always mentioned are problems with trademarks and copyrights.

    Assumed, I want to use spot colours in GIMP or Inkscape and also assumed, the software would provide, say, "Pantone(R) 134". It doesn't violate a trademark since it doesn't pretend to be a Pantone(R) product. Technically, it only tells the printer to produce an extra plate and use that colour for printing, nothing else.

    From the trademark perspective, developers seem to be off the hook, but now copyrights enter stage. On Pantones Website I can find the following information: "An unauthorized claim by third parties either as principals or agents, inferring that any referenced color or color system is the same as, or equivalent to, a color standard or color system of Pantone, may be a violation of Pantone’s proprietary rights and is strictly prohibited. Similarly, any cross-referencing, in whole or in part, to any PANTONE Color System including, but not limited to, the PANTONE Numbers and PANTONE Colors, by third parties, may be a violation of Pantone’s proprietary rights and is strictly prohibited."

    How can simple referencing to a number of a colour be protected by copyrights? If this were true, I would also infringe copyrights, if referenced to a Microsoft manual. Is this an attempt to confuse trademarks and copyrights to extract (very expensive) license fees from software companies?

    Maybe some of the legally trained folks can help me out here.

    [ Reply to This | # ]

    I, for one, enjoy the Linux reality...
    Authored by: Anonymous on Tuesday, August 16 2005 @ 02:08 PM EDT

    If I was running a business (which I hope to have some day) and it was making a profit in relation to the open source communities (I think I've decided my first business should be a shop to build Linux PCs, include informal training and such) then I'd deffinitely want to have a sound name in Linux. I don't see any reason not to abide by the licensing of the trademark to help protect the community.

    Considering the level of ethics I choose to walk, the licensing seems to me to be a bit low so I'd probably be more inclined to include a donation amount. That's just me however. I'd have to agree with P.J. that what Linus has decided is a good thing.


    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot
    Authored by: Nick_UK on Tuesday, August 16 2005 @ 02:10 PM EDT
    I wonder where I stand with my domain name (silly pun on
    Linux and Nick)?

    Much like windows and Lindows...

    Nick ?

    [ Reply to This | # ]

    Users groups
    Authored by: Christian on Tuesday, August 16 2005 @ 02:42 PM EDT
    If something isn't in Google, it isn't worth knowing :-). So, let's look up users groups.

    Paint Shop Pro Users Group, Windows Users Group Network, Lego Users Group Network, Arizona Macintosh Users Group, International Oracle Users Group, Zaurus User Group, AppleWorks Users Group, UK Unix and Open Systems User Group, Belgian Java User Group, New Zealand VW User group...

    Do we think all these groups are licensing the trademarks they use in their names? Does this come under fair use, because a "users group" is by definition people using a product, not providers of any good or service that can be confused with the original product? There is certainly no issue of "blurring" or "tarnishment." Look at the Bitlaw definition: "A mark is infringed under U.S. trademark law when another person uses a device (a mark) so as to cause confusion as to the source or sponsorship of the goods or services involved." A users group does not generally provide goods or services, and it is well understood that the users do not represent the owner of the trademark.

    Perhaps by the time I post this, a lawyer will have weighed in on the subject. But I do not see anything that would require a LUG to have a license to use Linux in its name.

    [ Reply to This | # ]

    Have they not left it too late?
    Authored by: Anonymous on Tuesday, August 16 2005 @ 03:45 PM EDT
    "Trademark rights may continue indefinitely, as long as the mark is neither
    abandoned by the trademark owner, or loses its significance in the marketplace
    as a trademark by becoming a generic term."

    Is Lin*x not already a generic term for the GNU/Lin*x operating system? I think
    it is generally agreed that it is used for much more than only the kernel.

    [ Reply to This | # ]

    Why Linus needs to care
    Authored by: FreeChief on Tuesday, August 16 2005 @ 03:52 PM EDT
    Linus Torvalds did not invent the name Linux, and was not the first to register
    it as a trademark.

    Read a couple more sentences before you toss this in the Troll Bin. Sorry, I
    have no clicky link for this, just my own memory, maybe someone with mad search
    skills can fill it in.

    Back in Elder Days, when nobody cared about Linux except Hackers and Gentlemen,
    and Linus Torvalds lived in Finland, Mr.Torvalds, who is a modest man (with
    nothing to be modest about), wrote a little OS kernel that he wanted to call
    Freex. The Hacker community did not like that name, and the community was
    right. By popular acclaim the unknown kernel was named Linux, in honor of the
    honorable Linus.

    All was well until several years later when, in one of the first cases of
    SCOundrelous behaviour, some guy who lived north of Boston went to the USPTO and
    registered Linux as a trademark name for an OS. Nobody would have even noticed,
    but he sent out letters demanding payment for the use of his trademark.

    It could have been big trouble, but in this case the US courts were on the side
    of justice. The community sent a few lawyers after him, they explained to the
    judge that Linux was the name of an OS that had existed for years, and that the
    fool in Boston had nothing to do with it, and in fact did not even have any
    software of his own under any name at all. The judge re-assigned the trademark
    to Mr.Torvalds, who said thanks and went back to thinking about virtual memory
    and process schedulers.

    LMI was formed so that we won't have to worry about that ever again. Call your
    own dog Linux if you want to, but call your software that and you have the
    Maddog to answer to. (He's not that hard to answer.)

    --Programmer in Chief

    PS: I call him Mr.Torvalds partly out of respect, and partly because it takes me
    three trys to type Linus with an "s" on the end. Really. Actually
    that last one only took two tries.

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot
    Authored by: Anonymous on Tuesday, August 16 2005 @ 04:42 PM EDT
    Why couldn't a community of volunteers do the job? The current fees are too
    high for Mom & Pop type operations and are not in the spirit of the freedom
    the GPL is meant to protect (which is not to say the GPL applies, except in

    Of course, instead of "Linux," one could always call the OS
    "GNU" -- or is that trademarked, too?

    [ Reply to This | # ]

    I think it is odd...
    Authored by: Anonymous on Tuesday, August 16 2005 @ 04:50 PM EDT
    ...that you can take a huge amount of other people's code and put it on a CD and
    call it anything but Linux and make no payment to anyone and make yourself a

    Very odd indeed.


    [ Reply to This | # ]

    The WINDOWS® Trademark
    Authored by: Anonymous on Tuesday, August 16 2005 @ 06:10 PM EDT
    How did MS trademark Windows®?

    Surely the term was already in common use and being used extensively within the
    computer industry. Does this mean we can take any common word and trademark it?

    Just wondering.

    [ Reply to This | # ]

    The Linux® Trademark - How not to word a letter!
    Authored by: toller8 on Tuesday, August 16 2005 @ 06:58 PM EDT
    Ok, I have to take some responsibility for the Tempest, since I was the person
    "quoted" in the original Age/Sydney Morning Herald article. As a long
    time Groklaw reader (only recent account tho!) I guess I'd better speak up.

    The letter I recieved was *very* unclear as to intentions, the Stat Dec I was
    asked to sign was suggesting things that I could not honestly sign, and as it
    turned out when I communicated with Jeremey, I was not the "type" of
    business he was looking for. He needed a Stat Dec to support the Australian
    trademark case not a case of someone rolling over because they recieved a legal

    In the end, it turned out to be an issue of a letter from a person who was
    looking for some specific situation but did not communicate any of that
    effectively. I suggested he reword it appropriately but I'm guessing that he

    In all, a storm in a teacup.



    [ Reply to This | # ]

    Actually there is an important need for this.
    Authored by: Anonymous on Tuesday, August 16 2005 @ 07:11 PM EDT
    The use of the Linux trademark could come in handy to
    kill off use of the Linux trademark for anti-Linux FUD.

    What is to stop Microsoft setting up a website called
    "Linux benchmarks labs" or "Linux-insider" as a conduit
    for orchestrated anti-Linux FUD, under the pretense that
    it is a Linux site giving impartial information? Why
    the Linux trademark of course. Wait a minute,
    Linux-insider has already been done, perhaps time for
    Linus to write to Linux-insider and them them to
    desist from using his trademark.

    [ Reply to This | # ]

    The Tux image is still free.
    Authored by: Anonymous on Tuesday, August 16 2005 @ 07:34 PM EDT
    Perhaps M$ will start using it somewhere, somehow, in their Linux® research lab
    effort. MicroTux© perhaps?

    [ Reply to This | # ]

    Australian law
    Authored by: Anonymous on Tuesday, August 16 2005 @ 07:37 PM EDT

    The Australian Trade Marks Act 1995, section 12 2 defines what is a non infringing use of a trademark.

    In it, one can find this text

    (1)(c) the person uses the trade mark in good faith to indicate the intended purpose of goods (in particular as accessories or spare parts) or services; or

    So, if any of you folks out the claim to be providing "Linux support" or similar, you're most likely off the hook anyway.

    [ Reply to This | # ]

    Australian law
    Authored by: Anonymous on Tuesday, August 16 2005 @ 07:38 PM EDT

    The Australian Trade Marks Act 1995, section 12 2 defines what is a non infringing use of a trademark.

    In it, one can find this text

    (1)(c) the person uses the trade mark in good faith to indicate the intended purpose of goods (in particular as accessories or spare parts) or services; or

    So, if any of you folks out the claim to be providing "Linux support" or similar, you're most likely off the hook anyway.

    [ Reply to This | # ]

    In my mind, there is still a fair amount of ambiguity here
    Authored by: Kevin on Tuesday, August 16 2005 @ 07:42 PM EDT
    A Certain Large Software Vendor, who shall remain nameless, asserts trademark in
    a common word to name its operating system, which shall also remain nameless.
    It also asserts that it is a violation of its trademark to claim in any
    advertising or documentation that a piece of third-party software runs on the
    Nameless operating system without permission of A Certain Large Software Vendor.
    (Permission is granted only under certain onerous conditions.)

    Will I now need to pay $200 to assert that a given version of a program is the
    version for Mr. Torvald's operating system, as opposed to the version for the
    one from Mr. McNealy's company or that from Mr. Gates's? Or that it's capable
    of running on that operating system at all?

    Yes, I trust maddog not to carry things to that ludicrous extent. But I suspect
    that his institution will soon find itself the target of multiple lawsuits from
    somebody, go bankrupt, and have the trademark (or the exclusive right to market
    it) disposed of by the bankruptcy trustee to someone who will. Do you think
    that Some Large Company's stooges won't be able to find a way to make that

    73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

    [ Reply to This | # ]

    Religious Freedom?
    Authored by: Anonymous on Tuesday, August 16 2005 @ 08:00 PM EDT
    I cannot comment about what that particular lawyer did--I don't honestly know.
    I can only hope that his conduct was both professional and ethical and indeed, I
    make no claims to the contrary simply because I am not familiar with his

    That said, Scientology critics routinely run afoul of the Scientology lawyers
    who, according to those critics, have something other than religious freedom in
    mind. I seem to recall where Scientology operatives (in Operation Snow White)
    stole or attempted to steal all sorts of government documents and such that
    would make them look bad, but then got caught. They weren't just any
    operatives, either, but the very top echelon of the group's leadership. L. Ron
    Hubbard himself would've been at least questioned had he not been in
    international waters or out of the country at that time. I seem to recall where
    Scientologist organizations were sanctioned for barratry because they use
    lawsuits to silence their critics, etc.

    Now, you are absolutely correct that that's no reason to cast aspersions upon
    this particular lawyer. Even if he has represented them, that doesn't mean
    anything other than that he believes everyone is entitled to represenation.
    That said, after the shenanigans I've seen the Scientologists emply, I'd
    consider having worked for them akin to having worked for SCO--it doesn't in and
    of itself prove that you're unethical, but it at least generates enough
    suspicion that I would want to closely examine just how ethical his past
    behavior was. LMI may be perfectly trustworthy, but making sure that the
    lawyers representing them have a high standard of ethics is perfectly reasonable
    for anyone anticipating dealing with them.

    From the SCO saga, we all know how bad unethical (even if not necessarily
    illegal conduct) by a lawyer can be, and I can only think that if more people
    looking for representation were more demanding that their lawyers be ethical,
    the courts would be less intimidating to those of us outside the legal

    [ Reply to This | # ]

    This IS a problem - fees too high by GLOBAL standards!
    Authored by: Anonymous on Tuesday, August 16 2005 @ 08:01 PM EDT
    You are thinking in US terms only. In particular you are thinking in US dollar
    terms only. Lift your head up and look at the rest of the world. $200US may seem
    like postage and handling to you. To someone in a developing country it is a
    year's wages.

    [ Reply to This | # ]

    Price Tier Missing Step
    Authored by: Anonymous on Tuesday, August 16 2005 @ 08:47 PM EDT
    I don't choke too much on the not for profit license because I have seen too
    many that were really "no stock holders but we all get very well
    compensated" organizations.

    I do choke on the less than $100,000 gross $200 dollar fee. I think there
    should be a less than $25,000 or so filing fee of around $5 for the LUG's and
    folks who do some casual support work so they are helping grow Linux but not
    really making serious money at it. If I have to bend I would rather see the
    ceiling drop to $10,000 than the fee go to $10. $200 is significant money to
    these folks.

    [ Reply to This | # ]

    There will be more of this
    Authored by: deadline on Tuesday, August 16 2005 @ 09:24 PM EDT
    It all sounded good until I got to the fees. LMI can charge a lot less and still protect Linux. They chose to gouge the open source community.

    I expect more of this kind of thing. It is just a easy way to make money off the back of those who did the actual work. Lets, see, we also need a vi institute, Apache institute, PHP institute, perl institute, oh my, there is a boat load of money to be made!

    Thanks LMI, your efforts will do more harm to open source than Microsoft or SCO ever could. You just put toll on the free exchange of software. Good going guys. Enjoy your money.

    [ Reply to This | # ]

    Sorry PJ but I think you missed the point.
    Authored by: EireannX on Tuesday, August 16 2005 @ 10:20 PM EDT

    The storm was created as I understand it, not by the fact that Linus wanted to nail down his trademark, but by the approach taken by intermediaries.

    From The lawyer apparently involved's FAQ
    Why do you want me to stop using the word Linux? I don't. The letter is not about that. The letter is simply saying that if you are using the word to identify your business or its products or services, we want you to help Linus out by signing a declaration to say that you are doing so under licence from his agents LMI

    Now to me not being a lawyer, that sounds like scam. I sign a statutory declaration saying I am using the term Linux under licence from this LMI mob and then when they decide the licence fees, I have to cough up or drop the term from my name. That may not have been the intention, it may have been wholly altruistic, but these people are supposedly lawyers, and to write these things and make themselves sound like a con act is really a work of artistic merit.

    Of course maybe they were dancing around the fact that Linus doesn't own the trademark to Linux in Australia, there is simply an application in place to get the trademark assigned to his name. I didn't receive the letter but I got supposed exerpts from here.

    You may or may not be aware that it is your legal responsibility to obtain a licence from the Linux Mark Institute before you are allowed to use the word "Linux" as part of your product or service name or brand.

    Which, if Linus' trademark application has not been processed yet is, I believe, factually untrue. If I receive a strongarming document with provable untruths (is that an oxymoron?, but you should get what I mean) then I think 'scam' And for the strongarming bit I refer to:
    Normally a licence from LMI costs USD$300 to USD$600, however LMI is prepared to ratify your previous use of the "Linux" trade mark and to waive its rights against you for any previous trade mark infringements, provided that you complete, sign and return the declaration that is attached to this letter.

    The lawyer in questions seems to have tried to cover the factual bases with this (from the ilaw site) How can Linus Torvalds or LMI have existing rights over the word Linux if it's not registered here? Because there is such a thing as an unregistered or "common law" trade mark whereby a person acquires rights in a name just by using it.

    Except this would suggest that all companies that are currently using Linux have acquired said rights, and Linus hasn't because he is not commercially active in Australia. These companies have been using the name for a reasonable length of time now, and I would imagine any common law rights Linus could assert against these companies would have elapsed by the very fact that he did not defend his trademark against them up to now

    Hence the request that companies currently using the Linux trademark sign statuatory declarations signing away any rights they may have acquired to the Linux name by using it commercially and assigning them to Linus through the LMI. None of which I have a problem with in principle, but the way these groups approached the practical side of appropriating the disparate rights which caused the issues.

    If it were approached correctly, the request could have revolved around the protection of the Linux brand in Autralia, upon which many of these companies rely, and acknowledging in the statutory declaration that the trademark of Linux in Australia should belong to Linus Torvalds as originator of the platform.

    In the current society, it has been entrenched in me not to trust either lawyers or corporations. So if a TLA corporation asks me to sign away my rights to them, even when they claim it is on Linus' behalf, and inform me that they may then levy fees on me for the activities I used to own the right to perform freely until I signed them over, and then threaten me that I am already infringing a trademark they haven't even had granted yet, and that may never be granted if I retain my rights, then yes I would be on my guard.

    I guess the whole point is ask an ye may receive. Push and my default position is to push back. Especially if you are a lawyer, a corporation, or a Nigerian who just happens to have discovered me as the long lost relative of a family wiped out in a freak tidal wave. (Ok in that last instance you probably won't recieve, regardless of how you ask)

    [ Reply to This | # ]

    This is NOT a good thing.
    Authored by: mobrien_12 on Tuesday, August 16 2005 @ 10:36 PM EDT
    Ok, I can understand wanting to charge commercial users in order to fund their non-profit center.

    But $200/year for NON PROFIT usage is insane!

    Just calling it Knoppix or BeefcakeOS or whatever is not a solution! Can they even say "BeefcakeOS is based on the Linux kernel?" And every distro on bootup says Linux on the screen. Are we supposed to rewrite the bloody kernel to remove all traces of the word Linux for nonprofit distros? Most GPL programmers get really angry if someone takes their software and just renames it without making substatial code changes. Is that what Linus really wants??

    What about Linux Users Groups? What are they supposed to call themselves now?

    This is just plain stupid, and I'm dissapointed in Linus' lack of foresight. Oh well, even great men make mistakes.

    [ Reply to This | # ]

    free, as in beer
    Authored by: Anonymous on Wednesday, August 17 2005 @ 01:03 AM EDT
    From all the complaints about potential Linux trademark license fees I see here,
    it seems to me that what people really want is an OS that is "free as in
    beer", and "free as in freedom" seems to be a secondary issue.

    [ Reply to This | # ]

    So linuxinsider/linux business week are licensed to use linux?
    Authored by: Anonymous on Wednesday, August 17 2005 @ 04:00 AM EDT
    Ok, but why only Australia? Why Australia at all???
    Shouldn't Linus (or his trademark defenders) pursue lbw and linuxinsider as
    How would this licensing scheme in Australia stop them???

    [ Reply to This | # ]

    This is a Linux business problem...
    Authored by: Anonymous on Wednesday, August 17 2005 @ 04:34 AM EDT
    "At that time an entity had obtained a US trademark on the word
    "Linux", and was trying to obtain twenty-five percent of the REVENUES
    of companies that had the word "Linux" in their name, or in their
    product names. Instead of all the member companies fighting this battle
    individually, Linux International fought it and won."

    ...not a Linux community problem. Linux will survive ultimately because of the
    unpaid efforts of the many. If it is outlawed due to legal problems it will
    just go underground, but it will survive. Samizdat works:)

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot - Updated
    Authored by: Anonymous on Wednesday, August 17 2005 @ 06:48 AM EDT
    That seemed overly hostile...

    1. First of all, it was a question, not a statement.

    2. Second, yes, of course the major players will gladly pay, but the small
    not-for-profit players will have to go with other names (as far as I can

    3. Third, yes, of course the projects themselves will not be affected. But they
    won't be called FooLinux or LinuxFoo (as far as I can understand).

    And, by the way, I never said this was a bad idea.

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot - Updated
    Authored by: Anonymous on Wednesday, August 17 2005 @ 07:39 AM EDT
    The trademark is there, not to make things difficult for people like you, but to
    be able to prevent organizations like Microsoft and TSCOG from using the Linux
    name to promote things that are NOT Linux.

    You need a licensing scheme in order to be able to REVOKE a license.

    If you do not police any misuse of the license, it is not enforcable and thus,

    Policing the license cost money.

    Money that someone has to pay. Part of this will come from the licensing

    Also keep in mind that this has NOTHING to do with Linux the OS. It is all about
    Linux the name. If the name is to have meaning in the future, it needs to be
    protected from misuse like Linux Insider.

    The letters sent out to people using the Linux name without a license HAVE to be
    sent, or the Trademark will be void. This is nothing at all like the SCO Linux
    license, because it is not at all about Linux the OS but about the name, and it
    is required by law if you want to be able to protect the name.

    The choice is simple. Police the name by sending out letters like you mention,
    or lose the right to the name.

    What is the better choice? Being required to get a license to use the Linux
    name, or maybe risk "Windows Linux" or some such silliness.

    [ Reply to This | # ]

    How we all can help.
    Authored by: kinrite on Wednesday, August 17 2005 @ 07:59 AM EDT
    I have just done a quick sample of random sites after Googling for Linux®
    (174000000 hits), and none of the first 5 sites had any Linux attribution at all
    on their home pages.

    Perhaps we could all spare some time to send some polite emails to sites not in
    compliance with the LMI requirements, pointing out what they need to do to
    become legal.

    I for one, will make a start straight after posting this.

    "Truth is like can not be created, nor destroyed"

    [ Reply to This | # ]

    A fool and his money are soon parted
    Authored by: Anonymous on Wednesday, August 17 2005 @ 08:34 AM EDT
    Seeing the update and the sob story about maddog, I'm still disgusted with the
    situation. Getting the Linux trademark switched was a good thing because nobody
    has the right to take 25% of a company's revenue over the L*nux name. But in
    the spirit of open source, if it costs this much to keep the L*nux trademark
    alive, then let it die. If it becomes untrademarkable, then nobody can charge
    us fees for it, and who cares who might abuse it.

    I have no sympathy.

    [ Reply to This | # ]

    Authored by: Mark Grosskopf on Wednesday, August 17 2005 @ 08:38 AM EDT
    This is just like Orson Welles' version of War of the Worlds.

    [ Reply to This | # ]

    It makes sense, even economically
    Authored by: Anonymous on Wednesday, August 17 2005 @ 08:51 AM EDT
    I mean: look at all those OpenSomething products. There's OpenThis and OpenThat,
    and while a few of them are legitimately calling themselves "Open"
    because they're developed as Open Source most are just riding the
    "Open" hype and nothing about the product is in any way
    "open". Even SCO sells a product named "OpenServer".

    So "Open" means nothing at all anymore and the reason for that is that
    it was no protected trademark and noone cared. If the name "Linux" is
    to mean something in the future then it needs to be trademarked (that already
    happened) *and* someone has to take care that there's really Linux inside if
    advertised as such, else "Linux" will soon have the same meaning as
    "Open" i.e. none.

    It's important that someone protects the trademark (trademark law says so), and
    it makes sense that it has to be that way, that a trademark has to be used and
    that someone has to care. Even so there's some trademarkhogging going on, we
    don't want it to get as bad as the worst times of domainhogging so that every
    other word and a good lot of pronouncable lettercombinations are trademarked
    "just in case".

    For someone who sells Linux and uses the trademark in advertising it makes even
    economical sense: He pays an organisation that takes care of the trademark so
    not everyone can sell any bullshit under the name "Linux" and in the
    process make the name worthless.

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot - Updated
    Authored by: Steve Martin on Wednesday, August 17 2005 @ 09:21 AM EDT

    Since 1995, when an unfortunate incident in the United States showed us that the world is not made of altruistic people and companies,

    PJ, I confess I was a bit surprised you didn't mention one William R. Della Croce, and his registration in the U.S. of the "Linux" trademark, in your original article. That story is indeed grim evidence of the need for defense of the "Linux" trademark.

    "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

    [ Reply to This | # ]

    From the GNU Coding Standards
    Authored by: Anonymous on Wednesday, August 17 2005 @ 10:00 AM EDT

    Please do not include any trademark acknowledgements in GNU software packages or

    Trademark acknowledgements are the statements that such-and-such is a trademark
    of so-and-so. The GNU Project has no objection to the basic idea of trademarks,
    but these acknowledgements feel like kowtowing, and there is no legal
    requirement for them, so we don't use them.

    [ Reply to This | # ]

    Give me a clue ...
    Authored by: Anonymous on Wednesday, August 17 2005 @ 11:58 AM EDT
    I can't find the ® key. (That one I just pasted from TFA). Perhaps it's
    because I am still using an IBM AT keyboard ;-)

    Looks like we are going to need it a lot in future.

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot - Updated
    Authored by: Anonymous on Wednesday, August 17 2005 @ 12:20 PM EDT
    Here's another instance of somebody who accomplished something coming under fire
    from those who haven't. People who haven't gotten off their butts and tried to
    do something have the luxury of imagining that there's some obvious way of doing
    it better.

    PJ's been on the receiving end of quite a bit of this too.

    Be nice if these armchair quarterbacks would bestir themselves to do something,
    and then show us by their example how to do things better.

    [ Reply to This | # ]

    Didio publishes non-FUD on TCO !!!
    Authored by: Anonymous on Wednesday, August 17 2005 @ 01:22 PM EDT
    Hell hath frozen over!

    Linux vs. Windows: TCO Comparison

    "Contrary to what the headlines would have us believe, the biggest threat to Microsoft's continued dominance, at present, is not Linux. It is older versions of Windows. The biggest threat to Linux is not Microsoft, but rather integration and interoperability issues among various Linux distributions and their applications."

    [ Reply to This | # ]

    I thought all this stuff was supposed to be free?
    Authored by: Anonymous on Wednesday, August 17 2005 @ 01:28 PM EDT
    Why is there always these hidden costs?

    [ Reply to This | # ]

    Can we see the letters?
    Authored by: glimes on Wednesday, August 17 2005 @ 02:00 PM EDT
    Everyone seems up in arms about these demand letters
    sent out to Linux User's Groups.

    Can we see the text of the letters, please, before we
    start frothing at the mouth?

    Or did I miss where this was already posted?

    Greg "Dammit Jim, I'm a Programmer, not a Lawyer" Limes

    [ Reply to This | # ]

    *nix - now *inux???
    Authored by: Anonymous on Wednesday, August 17 2005 @ 03:39 PM EDT
    Everybody has in the past avoided trademark infringement by using
    "*nix". So I guess now its "*inux".

    Ok, IMNAL, I'm an engineer. Correct me, flame me, I dont care. But this is
    really bothering me. PJ is pro, some are against, and I'm just confused.

    Personally, I think the non-profit people, those that make and distribute
    distro's just for fun (think Knoppix), should have the ability to contribute to
    the "trademark" fund voluntarily - as they can afford, but have the
    ability to be granted license to use the "Linux" name for free.
    People like Novell, Red Hat, et. al., have no problem paying for the trademark,
    and should by all means be contributing. Yes, I understand the need to protect
    the "Linux" name from infringement and misuse.

    But here's my problem. Having to pay to use the name "Linux", having
    to make sure that I dont run afowl of the law and have letters from attorneys on
    my doorstep scares me. I cant afford to pay $200/yr, plus paperwork, etc, etc.
    for something that is a hobby. And that's if I can convince whomever that I'm
    non-profit. Does that mean I have to set up a non-profit orginization, with
    paperwork, to qualify?

    Ok, how about this scenario? I write function "foobar.c" that adds
    something useful to the kernel. My changes are accepted by Linus, and becomes
    part of the kernel tree. I cant take that kernel that has my contributions in
    it, put it on my website to everybody to enjoy, advertise to the world (and
    Google) by saying that it is "Linux" without having to buy the
    trademark? Isn't that a disincentive to contribute in the first place.

    I am having a very hard time with this. I love Linux, I use Linux, I am Linux
    advocate. Now, there seems to be less freedom than before. Somehow, this just
    doesn't feel right. I almost feel like chucking the whole thing and switching
    to BSD just to feel safe from lawyers.

    Ok, go ahead and flame...

    [ Reply to This | # ]

    GO Maddog!
    Authored by: Totosplatz on Wednesday, August 17 2005 @ 04:23 PM EDT

    Amazing. The fellow should have asked for help much sooner. He deserves a "Noble" prize!

    I decided to join Linux International but there are only two kinds of membership described on their LI join-page.

    There is no "individual" membership and I am afraid that I cannot afford a $2,500 Corporate membership. I do not see a PayPal "contribute" button either. Oh well. If LI decides to do either of those things I will make a contribution.

    All the best to one and all.

    [ Reply to This | # ]

    A new Linux(r) name without the Linux(r)..
    Authored by: Anonymous on Wednesday, August 17 2005 @ 05:17 PM EDT
    Oh well, just for fun...

    GNUNIX (pronounced gnoo-nix). A contraction of GNU and Linux without the
    overhead of having to pay the trademark fee. Everything you have come to expect
    from the GNU/Linux operating system without the overhead.

    Ok, if that's too close to "Unix" then how about GLINUX (pronounced
    glenn-nux). GNU+Linux. Get it?

    GNULINUX would be a little hard to roll off the tongue though. Try it.

    Now I feel better! :)

    Seriously though, if everyone discards the Linux word in their distros and
    corporate names, etc, etc, then who's going to fund LMI? That does seem to be a
    money-saving out.


    [ Reply to This | # ]

    sorry PJ, it still looks wrong
    Authored by: Anonymous on Thursday, August 18 2005 @ 06:12 AM EDT
    First of all, as other posters have pointed out, the Linux
    kernel is just a tiny part of a much larger collection of
    code. Linus has nothing to do with 99% of the code that
    goes into an average Linux distribution.

    So it looks to me like it's already diluted, and has
    passed into common generic use, like Kleenex.

    I also find it odd that Linus himself has nothing to say
    on the subject- there sure are lots of folks purporting to
    speak for him.

    I think this is a bunch of legalistic opportunistic hooey.
    It's silly to worry about the Wrong People misusing the
    Linux name, that's a self-correcting problem. If
    microshaft or fiaSCO release some bogus product and call
    it Linux, it will be laughed off the planet in about 4

    How about we get back to "free as in freedom," and let
    things sort themselves out. This does nothing but cut the
    hand that wields it.

    [ Reply to This | # ]

    The Linux® Trademark - Tempest in a Teapot - Updated
    Authored by: belzecue on Thursday, August 18 2005 @ 06:21 AM EDT
    There has been much thoughtful discussion here, but I remain convinced that a
    smaller 'non-profit' license fee would better serve all involved.

    At $200 for non-profit use (same as sub-100K profit use), distro makers will
    likely seek a 'foo-nix' style name for their project rather than hand over the
    fee. (I am not advocating that distro makers do so; that is simply my

    Were the non-profit fee only $20, I find it more likely Joe Distro Maker would
    happily pay the fee for the privilege of adding 'Linux®' to their distro name.
    The more use of the trademark, the more familiar and comfortable Joe Public will
    be with this 'loo-nicks' thing he/she keeps hearing about.

    Perhaps the numbers would balance out in the long term -- one $200 license and 9
    preferring to rename versus all ten buying a $20 license. But it sure would
    remove the current ill-will (deserved or not).

    Despite the above, who knew that it has cost Maddog so much to safeguard the
    trademark. Talks about taking one for the team. I hope, if nothing else, the
    spreading knowledge of his sacrifice is some small compensation.

    [ Reply to This | # ]

    The Linux® Trademark - why not FSF?
    Authored by: Anonymous on Thursday, August 18 2005 @ 10:28 AM EDT
    First IANAL - just a developer. But it does seem to me that there might have
    been a better way to handle this.

    The FSF has the means of enforcing proper trademark usage as was pointed out in
    another post, and seems to have not raised the ire of the open source community
    with it's legal actions. So far I haven't received any letters requiring me to
    send money to the FSF because I released a GPL'd application on Sourceforge that
    used GTK in it's making. The GIMP group hasn't either.

    Add in the fact that LMI states that they are non-profit, so there is no
    specific reason for their existince except to enforce the Linux trademark. I.E.
    no profit motive for Linus. Anyone could have handled it for him.

    Wouldn't it have been a much better solution to Linus to arrange for the FSF to
    handle the trademark of Linux instead of Linus taking it on his own to assign it
    to LMI? The FSF seems to be working rather well without developers being
    required to license the GNU trademark, or pay royalties on products made with
    GNU tools.

    So far LMI has caused a tremendous polarization in the community as witnessed by
    the posts here and on Slashdot. Some have praised LMI (including PJ) and others
    have called them the evil overlords. I dont like to see this, especially when
    we open source developers are being attacked by the likes of SCO and Microsoft.
    We need to stay unified and focused.

    IMHO the Linux trademark has already been diluted to the point it is much like
    calling a tissue "Kleenex" or making a "Xerox copy". And we
    remember just how successful Xerox Corp. was in trying to undo the trademark
    dilution with their run of TV commercials. We still call a generic photocopier
    a "Xerox machine" to this day. Methinks the cat is already out of the
    bag and LMI isn't going to undo it.

    We refer to a GNU/Linux distro as "Linux", we have "Linux"
    boxes, and we are always chewing up bandwidth downloading the latest
    distribution of "Linux". My router runs "Linux", my laptop
    runs "Linux", and I'm writing this on my "Linux" machine.
    I'm working on a product using "Linux" as it's OS here at work. No
    matter that each device is radically different in use and type, and each OS has
    different roots, we refer to them all as running "Linux" in the most
    generic way even though the Linux kernel is a small portion of each system. The
    word "Linux" has pretty much invaded the English language for good.

    Sorry LMI, too late. Linux, Linux, Linux everywhere!

    I noticed that many non-profit very popular distros have quietly selected names
    that do not contain "Linux", for instance Ubuntu and Knoppix. However
    pint-sized operations such as DSL (Damn Small Linux), and Pee-Wee Linux will
    either have to pony up the license fee, change their name, or go extinct. The
    latter would be tragic.


    [ Reply to This | # ]

    Off Topic - Bob X Cringely
    Authored by: KAKMAN on Friday, August 19 2005 @ 12:20 AM EDT
    here is link to this weeks's I, Cringlely

    Discusses Orrin Hatch's weasel attempt at patent reform in favor of large
    pocketed corporations, oh, I don't know, let's say, SATAN, I mean Microsoft.

    BTW, Google has introduced a new tool for its Blogger website, Blogger for Word
    Have already put in a request for Blogger for Write. Perhaps if
    enough people made same simple request here
    (just cut and paste Blogger for Write to "suggest a new
    feature" space),
    it could happen.

    [ Reply to This | # ]

    Ok, how about this solution?
    Authored by: Anonymous on Friday, August 19 2005 @ 09:59 AM EDT
    If this has been addressed in another posting, then I apologize for being

    IANAL, but based upon my non-legal profession understanding of the GPL I am
    pretty sure this is kosher. Correct me if I'm wrong.

    Ok, when Xfree went to their version 1.1 license, which many in the open source
    community did not like, Xorg was formed which forked the X-windows source tree.
    This is perfectly legal with open source as long as the original copyrights,
    attributions, and licenses are respected.

    If you find what Linus, LMI, et. al. is doing with the "Linux(r)" name
    really goes against the grain of your thinking, simply get a group together,
    pick a snapshot of the source tree, add any patches you like, and redistribute
    calling it "SOMETHING_OS based from the Linux sources". Apparently if
    you dont call the forked kernel "Linux", then you are not under
    trademark restrictions.

    Set it up on Sourceforge or the like, have some sharp maintainers keep track of
    if and do some really strigent quality control.

    I would caution to make sure that everything be done with respect to Linus and
    the GPL. You probably would want to consult with someone who is experienced and
    knowledgable in open source licensing and the GPL.

    If enough people like it, use it, and recommend it, then consider it a job well
    done. there is nothing that says it has to be GNU/Linux, it can be GNU/[insert
    your os name here]. It could even eclipse the original, such as Xorg over

    After all, that's what it is all about. Just take good code and make it better.

    Would this help?


    [ Reply to This | # ]

    A Few Simple (?) Questions about GPL and CCL projects
    Authored by: keithmo on Friday, August 19 2005 @ 12:18 PM EDT

    I'm curious as to LMI's definition of "a Linux - based product or service...using a trademark that includes the element 'Linux'".

    A quick search on SourceForge reveals a number of freely-available GPL'd projects that incorporate the word "Linux" in the project name. A few examples (randomly chosen from the first page of search results) include:

    Is the license required for these GPL'd projects that include Linux in their names?

    What about CCL-licensed literary works?

    [ Reply to This | # ]

    The Linux® Trademark
    Authored by: Anonymous on Friday, August 19 2005 @ 02:08 PM EDT
    In most cases people are only using the word Linux as a qualifier, showing that
    *their* products or services makes use of Linux.

    Would it be preferable if no acknowledgement were given?

    Perhaps just saying "Powered by FOSS" will start to be used instead.

    [ Reply to This | # ]

    Jeremy Malcolm: On EFA Board while attacking free speech?!?
    Authored by: Anonymous on Friday, August 19 2005 @ 09:34 PM EDT
    The Board of EFA has noted with concern the criticism of EFA Board member
    Jeremy Malcolm for representing the Church of Scientology in a conflict with
    Steve Zadarnowski's web site and posts to Usenet. In many respects the Board
    shares those concerns, given that the Church has instructed Jeremy to employ
    legal process to stifle Steve's criticisms and comments on the Church.

    While supporting the right of anyone to legal advice and representation, EFA
    is of the view that the use of defamation law to stifle free expression and
    debate is to be condemned in the strongest terms. EFA is ready, willing and
    able to support any person who has their rights to free speech threatened by
    the legal process.

    To respond to concerns that the presence of Jeremy Malcolm on EFA's Board
    compromises EFA's committed stand for freedom of expression, Jeremy has
    voluntarily stood down from the Board until further notice. On behalf of the
    Board, I thank him for this action. While the Board acknowledges that a
    lawyer's own views are not to be assumed to be those of any individual client,
    the perception of divided loyalties would be damaging to the reputation of
    EFA and may dissuade people from seeking EFA help in a legal conflict,
    especially concerning the Church of Scientology. Jeremy has entirely absented
    himself from EFA meetings and online discussions for the time being so as to
    remove any possibility of conflict of interest.

    Jeremy has not resigned from the Board of EFA. The Board, including Jeremy,
    are in discussion as to the circumstances under which he will continue his
    unpaid and committed work for EFA in its civil liberties charter.

    I would like to emphasize that throughout the present dispute, Steve has
    been in regular contact with myself and all information has been dealt with on
    a confidential basis. Anyone who is cautious about contacting an organisation
    rather than an individual over a litigious issue is welcome to contact myself as

    EFA Chair or Irene Graham as EFA Executive Director.

    As to the threat by the Church of Scientology against Steve's site and Usenet
    posts, on behalf of EFA I deplore the heavy-handed use of the legal process
    to stifle criticism of the Church and note that the site has been mirrored
    elsewhere. Defamation law, an uncertain and expensive legal process, is ill-
    used in relation to the Internet. The 1999 amendments to the Broadcasting
    Services Act, strongly criticised by EFA for its censorship provisions,
    nonetheless created section 91 which protects ISPs from liability as publisher
    in circumstances not yet tested in Court. EFA supports the establishment,
    through a test case, of the proposition that threatening the ISP as a tactic to

    stifle online expression is unlawful in Australia and such conduct may, in
    turn, give a right to a counter-suit.

    In any event, Steve's web site and Usenet posts represent opinion and social
    commentary that deserves the highest standards of protection as free speech.
    EFA is committed to assisting persons in his situation and to offer such
    support as may be of help, including legal assistance.

    Both myself and the Board will be pleased to answer any concerns that may
    linger regarding this issue, and the furore over this issue has prompted EFA
    to consider and document its procedures for ensuring that there are
    transparent and visible processes for avoidance of even the appearance of
    conflict of interest.

    On behalf of the Board,
    Kimberley Heitman, Chair
    Electronic Frontiers Australia

    [ Reply to This | # ]

    LMI should make trademark less strict
    Authored by: goofyknite on Sunday, August 21 2005 @ 09:42 PM EDT
    Everybody can sympathize on that. But LMI should make trademark rules less
    restrictive and more easyer to understand.

    Microsoft's Trademarks rules and guidlines are easy to understand. I at least I
    know I can use Microsoft text trademarks in in a website for FREE by following
    its rules

    With LMI, I know a tradmark sublicense is required for use of the word 'Linux'
    in a distro name or in a bussiness name.
    But, I don't know I could use the word 'linux' in a web page.

    For exmaple, This texts will say this in web page 'ABC Computer Tech also
    provies support for Linux OS... .'

    Is sublicense is required when 'Linux' use in the above example?

    [ Reply to This | # ]

    This is retarded. There is nothing to defend
    Authored by: Anonymous on Monday, August 22 2005 @ 03:17 AM EDT
    No offense to any of the legal gurus here, but I fear that we may have all
    become a little over-zealous about protecting something that works best

    I cannot go out and sell you a Steel Car made entirely of aluminium. The reason
    I can't do this is because it is false advertising, the car contains no steel.

    Thus, the (constant) comparison to words like "Open" are simply not
    valid, "Linux" is not a common english word with some fuzzy feel good
    emotions attached to it, it is the name of an operating system kernel.

    The only valid comparison that has been produced so far is "kleenex",
    a situation where people use the word kleenex to refer to any tissues, not just
    to kleenex tissues. However this came about as a result of a concerted
    marketting effort by Kleenex themselves and the no-name-brand market attempting
    to cash in on it. Creating a no-name kernel would be a lot of work for a start,
    and then calling it Linux would invoke false advertising, Microsoft can't just
    pump out their new Windows Linux distro without a Linux kernel in it, even if it
    isn't trademarked.

    The only valid threat is an attempt to create a fork of the Linux kernel and
    call it Linux. And quite frankly, I *want* people to be able to do that. The
    good outweighs the bad.

    It is important that nobody except Linus have the rights to the Linux trademark,
    however it is not important that Linus have rights to the Linux trademark.

    It is vitally important that there be absolutely no legal fear about developing
    software to operate under the Linux kernel, or on Linux-based distributions.
    Chilling effects are damaging to the ability of the community to work, and any
    legal threat no matter how small (even $1) is too large for a 14 year old who
    writes a "Linux screen saver".

    As far as I am concerned, this is entirely commercially motivated, not from
    Linus's side but from the point of view of "protecting" things and
    "preventing" people from profiting by using a "good name".
    They can name it whatever the hell they like, it doesn't stop me from
    identifying whether it contains what I want, nor does it prevent community
    actions from identifying entities that comply with whatever particular rules
    they see fit.

    I don't intend to insult those people who have spent money and worked hard to
    support the trademark initiative, I have no qualms about their motivations, I
    simply consider them to be suffering from a commercial tunnel vision and an
    over-exaggerated sense of threat.

    The entire thing about Linux and Open Source (and I'm not being too much of a
    hippy) is that money does not come first. It can join the party, sure, it's
    useful and we need to eat, but as soon as it gets in the way it needs to take
    back seat to enabling the people who want to help make it better for everyone.
    Let the trademarks lapse, let Linux the word be Free as in speech, not fairly
    cheap as in beer.

    [ Reply to This | # ]

    Linus email on the matter
    Authored by: Anonymous on Monday, August 22 2005 @ 04:58 PM EDT

    Copy of email send to the kernal mailing lists.

    Housekeeping as time has moved on. I think he explains it in a manner that should be understood by the random slashdot/Groklaw poster.


    [ Reply to This | # ]

      _Gross_ revenue
      Authored by: raya on Tuesday, August 23 2005 @ 02:51 PM EDT
      "If you are making between $200,000 and a cool million using the name Linux, do you find it unreasonable that you pay a $1,000"

      For the first time I find fault with PJs writing.

      That isn't at all what the fee schedule states.

      It clearly refers to _gross_ revenue, and _projected_ at that.

      You might be making nothing, or losing money hand over fist, but you would still be liable for $5k if you even projected that you would turn over $1M. That is an IT company of five or six people (here in the uk on average) - hardly a large enterprise, and that hits the top price band.

      "As you can note, you don't pay anything like that if you are a nonprofit."

      Surely, the license is written under US law where non-profit means, I believe, something particular ? An equivalent status may not even exist as an option for many people around the world - whether they are trying to make a profit or not.

      If LMI had wanted to base the fees on the money you make of Linux they could have done so, but they didn't.

      [ Reply to This | # ]

      The Linux® Trademark - Tempest in a Teapot - Updated
      Authored by: mikeprotts on Wednesday, August 24 2005 @ 05:57 PM EDT
      My two penn'orth under UK law

      IANAL etc.

      As Linux (TM) has been available with no fee payable if distributing Linux for
      many years, this has become accepted practice, and would therefore be considered
      as legitimate for existing distributions.

      However, anyone starting now would have to work by the current rules and would
      either have to have Linux (TM) NOT in the name, or pay.


      [ Reply to This | # ]

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