Linus Torvalds’ bid to have the word ‘Linux’ trademarked in Australia has failed, with the local intellectual property regulator sending his lawyer a vitriolic letter deriding efforts to provide evidence the trademark application was legitimate. In the letter, published by ZDNet, the regulator points out that information from Wikipedia and Google used by the lawyer to support the trademark application is simply not effective in making the case for a trademark to be registered.
The lawyer used Wikipedia for a source. Bahaha. That is just too funny.
The lawyer used Wikipedia for a source. Bahaha. That is just too funny.
I thought it was interesting the regulator dismisses the argument, but seems to acknowledge Wikipedia as a valid source of information (he refers to it as the ‘wikipedia encyclopedia’).
So the regulator wasn’t laughing, why should you ?
The lawyer used Wikipedia for a source. Bahaha. That is just too funny.
I thought it was interesting the regulator dismisses the argument, but seems to acknowledge Wikipedia as a valid source of information (he refers to it as the ‘wikipedia encyclopedia’).
So the regulator wasn’t laughing, why should you ?
Wikipedia is hardly an authorative source, anyone could possibly edit it at any time and place false information in it and there is no definite time in which it would be corrected. I find it rather unproffessional that a lawyer would rely upon it and google to establish a case for trademark.
Wikipedia is hardly an authorative source, anyone could possibly edit it at any time and place false information in it and there is no definite time in which it would be corrected.
As Ralph said, he used Wikipedia to show usage of the term ‘Linux’, not to ‘proove’ facts about it.
Any foul play would probably be pretty easily caught by looking at the revision history.
He didn’t use Wikipedia as a source, but as an example about how Linux is used in the public.
This is something entirely different and actually makes sense, as you would have found out had you read the article.
Well, common sense at last. Of course, as long as the Intellectual Property Australia body doesn’t let anyone else register the trademark.
Dave
If a trademark is not registered, and is not maintained and protected, then anyone can use it for anything, and then start excluding the use of it by other people. I’d far rather have Linus and his non-profit foundation protecting and maintaining the trademark – which by the way requires licensing the use of it, and charging for it – than turning it over to the wild west.
> If a trademark is not registered, and is not maintained and protected, then anyone can use it for anything …
Isn’t that what most of us call Freedom? 😉
> … and then start excluding the use of it by other people
If even Linus can’t do it (in Australia), I doubt anybody else can. It doesn’t “who have the better lawers”-question. His position is just weak. He had just luck with his first case, but actually it’s not the best strategy to make the product almost absolutely free and than try to take parts of this freedom away.
I personally see his fail positive. If we want to see a better and responsible society in the future, we must start make it real as soon as possible. And taking away freedom is not the right way to go, it’s just another step in the wrong direction. “They that can give up liberty to obtain a little temporary safety deserve neither liberty nor safety” – Benjamin Franklin
You are of course, totally correct. In an ideal world, one that is not full of greed or self egotism, trademarks, copyrights, patents would all be abolished. People would sell their products based on the best product, not on forced monopolies, which is what copyrights, trademarks and patents do.
This isn’t communism – the current monetary/fiscal/socioeconomical system is just not viable long term – it will collapse. It’s not a matter of if, but when. Do we want to learn the hard way, or actually make things better by making changes now? Knowing how greedy those in power are, it’ll be later of course. To the detriment of society overall. It’s nice to see that the few % that are rich and powerful can dictate what the rest of the population can, and cannot do. That is not equality, and it is not the majority.
Dave
the current monetary/fiscal/socioeconomical system is just not viable long term – it will collapse. It’s not a matter of if, but when.
I’d like to hear some proof for that statement. Or at least the reasoning behind it.
OK, I’ll use a basic example. Shareholders are continually demanding/wanting an increase in their profits. Yes? The only way to do that is to increase profit. That either means new and innovative products, or milking current products. New and innovative products are becoming rarer and rarer. So the more likely method is milking existence products. Now, you can only do that so far.
A know method of increasing profit is twofold:
1. Reduce expenses (usually employees)
2. Increase workload on those left
This has been going on for quite some time now, and if you don’t see it, you’re blind.
Do you think this process will stop? No. It won’t. Shareholders will keep wanting a profit, and they won’t care how they get it. The first thing to go is employees in any cost cutting of a business. Employers will continue to shed employees, and increase the workload. Now allow myself some other thoughts on current economic trends (it all fits into my argument).
1. Our population (worldwide) is aging. We have more people getting older and dieing than being born. There is a reason for this:
a. A lack of desire for many to have children (many people consider them an unnecessary nuisance or waste of money). How many couples are either avoiding having children altogether, or having them in their late 30s? It has now been recently proven that a man’s sperm degrades from around 35 onwards, resulting in a high increase in deformities in newborn children. These children will have a lower chance of fitting in with society, and of course earning income [depending upon their disabilities, of course].
b. Children are growing more and more expensive to maintain. Various companies seek to take advantage of children’s desires, and that costs the parents money. Again, we have toy companies trying to sell their wares to make an increase profit. Toys are getting more expensive. I remember as a child, I didn’t need a playstation or xbox. I had a bike, an imagination and other friends. We amused ourselves. That doesn’t seem to be the case with modern children. Remember playing cricket on the road (if you lived in a backstreet that is) with other kids? How often do you see such simple amusement (and cost effective) these days?
c. Many countries are adopting the US way of living, which is a dog eat dog society. If you don’t have the money, you get nothing. Medical systems? The US system has to be one of the worst in the world. Caring for the ill, the needy should be a social thing, not something to be shunned, ignored and hope it goes away [of its own accord]. Greed has extolled that virtue in modern man. Greed and a lack of empathy and caring.
Now what will happen over time, as we have less children, and more older people in society? Either the older are made to work longer (ie retirement age is either increased or abolished – don’t laugh, it’s already happening in Australia with our current uncaring government). There’s a reason why they call living “life” and not “work”. We already spend too much time working, and it’s mentally and physically unhealthy. You’ll notice that there is a worldwide increase in physical and mental problems, and that is, you’ll find, directly related to the increased stress of working from when you’re 14 or 15 to 70 or 75. The human body wasn’t meant for it. Of course, older people will not think and work as efficiently as younger people, so it will be harder for them to keep employment, despite laws indicating that they’re still “old enough to work”.
Think though – as employers cut employees to increase profits to satisfy greedy shareholders, it will mean less employment. That will mean less people paying taxes. What to do?
1. Either reduce services to the public, to reduce government spending (already happening in many countries in a variety of ways).
2. Increase taxes (meaning less income).
3. Both 1 & 2. This is highly likely.
Point 2 (and of course 3) has a problem – with the increase in expense of items, and the decrease in income (due to both the businesses paying less income, and higher expenses of items), people will be less and less able to survive in their day to day living.
As people will have less money in order to survive, nature’s laws of survival will kick in. This will mean a huge increase in crime. We’re already seeing this. It will ONLY get worse. No matter how much capital punishment you introduce, it will get worse. The death penalty in the US (and other countries) has not had any impact on crime. As time goes on, more and more of society will become fragmented, and social order will break down. Those few in power will exhibit mass genocide to enforce their control (or will attempt to). 1984 or THX-1183 isn’t as extreme as many people would say.
The question then is, “how desperate will these powerful few become?”. How desperate will the majority become? I’ve questioned my own thoughts for quite some considerable time, in the hope of thinking that I’m wrong, but alas, the more I consider it all, the more I seem to agree with what I expect will happen. As I said in my earlier post, it’s not if, but when.
Dave
what an amazing misuse of the consept of freedom, people are free to use the trademarked name of Linux in their product if it is a GNU/Linux software distribution that abides by the trademark of Linus Torvalds’ Linux kernel & the GNU/GPL, distrowatch.com lists over a 100 of such cases.
what Torvalds wants is for his product’s trademark to not be mis-used, not that he does not want others to benefit from it.
i have a feeling that aussie has not heard the last of this, i hope Torvald’s lawyer puts a stop to this…
I agree with you, but Torvalds has missed the boat. The term has become popular and well known prior to him asking for trademark on it. It’s like asking the NBL to overrule a victory because the referee made several bad decisions during the course of the game. It just won’t happen. Torvalds had a responsibility to trademark the name in a timely manner, and has failed to do so.
I don’t want to see others taking advantage of the name Linux and abusing it etc. In reality, those that are decent won’t abuse it. Most people using the term Linux care about Linux, the community, and open source in general. Those that abuse it, will eventually suffer from very bad press, and very bad sales.
“Never piss a penguin off!”
Dave
“I don’t want to see others taking advantage of the name Linux and abusing it etc.”
You’re right, but. Linux cheerleaders are abusing GNU. In almost all contexts where this word is used it could be replaced with GNU/Linux or simply GNU. Next to nobody knows what the kernel is, yet they’re all using or abusing the word Linux. Or if I give a different interpretation of the state: Linux is not a kernel anymore. Nice move, Australian comrades.
Tradmarking linux is a bad idea anyway. It’s time we stand up and and dig our oars in the buttom of this rotten ship.
Quote: “In almost all contexts where this word is used it could be replaced with GNU/Linux or simply GNU.”
I agree that it in reality, should be GNU/Linux, although not simply Linux or GNU, as either of those would be incorrect. A typical Linux distribution is a mixture of the Linux kernel and GNU utilities with many open source applications, mostly released under the GNU GPL.
Quote: “Next to nobody knows what the kernel is, yet they’re all using or abusing the word Linux.”
True. Many people don’t care – Microsoft has caused a lot of this I believe, because it’s product is simply known as Microsoft Windows. Even Apple’s OS X does not indicate a kernel etc. They both indicate a “package”, and I suspect that this is why the term Linux has become so popular, rather than GNU/Linux. Also, I think many Linux users do not appreciate Richard Stallman, or the FSF, or the GNU, and in some respects, losing the GNU prefix is their way of showing their disrespect. People will tend to psychologically gravitate to the simplest name. That’s human nature.
Dave
Torvalds did register the trademark and it is widely acknowledge that he holds it. This decision will be overruled on appeal.
Maybe in other countries, but not in Australia. Australia is ruled by Australian law, not British or American. If he’s registered a trademark in another country that does not mean it’s automatically registerable in Australia (or any other country for that matter). He must meet the requirements of local law.
Dave
hi Anonymous,
“… what Torvalds wants is for his product’s trademark to not be mis-used, not that he does not want others to benefit from it. …”
controlled freedom? is it something like controlled democracy in russia?
“controlled freedom? is it something like controlled democracy in russia?
”
Or controlled democracy in previously-almost-two-party-now-really-one-party USA? 8P
As I said my original post – as long as the governing body in Australia is fair, and disallows the term “Linux” to be trademarked by anyone else, than all’s OK. Can’t speak for other countries.
Apart from common sense, there is also the argument that Linus Torvalds failed to uphold his ‘trademark’ rights, for over ten years in Australia! If he’d trademarked the term Linux when he first named it on the Minux newslists, then all would be OK. But he hasn’t – the term has become almost common name now, even those that are non computer literate have heard the term.
Of course, if the Australian governing body allows anyone else to trademark the name “Linux” then I think Linus has a very fair reason to be pissed off and sue the Australian government for damages.
Dave
If a trademark is not registered, and is not maintained and protected, then anyone can use it for anything, and then start excluding the use of it by other people.
But if Linus’ lawyer (as lousy as he might have been) couldn’t make the case for trademarking Linux, how could anyone else register it? And is there a way to repeal a trademark (think patents prior art clause)?
The regulator dismissed the use of Wikipedia and Google as proof the Linux refers to a specific thing, while using Google as proof that Linux is associated with lots of different things.
I think that’s the point: the concern that Linux refers to a specific thing (i.e. the Linux kernel) but is increasingly used to refer to other things (i.e. the free software community).
Furthermore, I defy anyone to claim that the term Linux wasn’t coined by, that the Linux kernel wasn’t originally authored by, that the Linux Kernel Project, wasn’t started by, or that the maintainer of the Linux kernel is (and always has been): Linus Torvalds. In what sense does he not have the right to trademark the name of his product?
The term “Windows” is widely used in various contexts, but Microsoft was allowed to trademark that. The Lindows case opened some doubt as to whether or not the trademark is defendable on the basis that “windows” is a generic term, but the case carried enough merit to force a settlement. Linux is not a generic term. When I wake up in the morning I don’t look out my Linux to check the weather…
Regardless of whether you think trademarking Linux is a great idea, Linus should still be allowed to do so.
Quote: “Furthermore, I defy anyone to claim that the term Linux wasn’t coined by, that the Linux kernel wasn’t originally authored by, that the Linux Kernel Project, wasn’t started by, or that the maintainer of the Linux kernel is (and always has been): Linus Torvalds. In what sense does he not have the right to trademark the name of his product? ”
I see what you’re saying, and I agree with it – BUT, the Linux kernel is now over ten years old. Linus should have done the trademark thing back then, not now. By leaving it so long, the term has become common, and is no longer trademarkable in my eyes. The Australian governing body also feels the same way, and it’s quite a logical, common sense ruling – as long as no other body is allowed to trademark the term “Linux”.
Dave
Finally someone has to guts to stand up against the Linux commie bastards. Google is gay and Wikipedia is for jobless slackers who can’t afford Britannica. A glorious day for the free upright world!
Here here, brother! I could not have said it better myself! Let’s all celebrate that joys of propietary software provided by soul-eating and money-mongering corporates whose products are righteously built on greed, FUD and monopoly abuse, like all decent people should.
Linux is for the kernel.
GNU/Linux is the OS.
http://www.kernel.org/legal.html
“Linux is a Registered Trademark of Linus Torvalds. All trademarks are property of their respective owners.”
http://www.mandrivalinux.com/en-us/
Bottom of page :
“Linux is a registered trademark of Linus Torvalds.”
etc …
What would have been common sense is to agree with the other country that the Linux name is a trademark of Linus Thorvalds.
What need to be done is
1) ALL the GNU/Linux distribution need to put on there front page from now one Linux is a registered trademark of Linus Thorvalds. They need to send a letter to the Australian lawyer and to this Trademark bureau stating the date at wich they started selling GNU/Linux and where in there documentation and license is it clearly written Linux is a trademark of Linus Thorvalds ( showing acceptance by an Autralian Citizen of this biding contract ).
2) All of the website and product using the name Linux need from now on to have it writtten on there main page and product too.
3) Wikipedia need to be corrected , Linux is ONLY the kernel.
4) all the definition from those place that say Linux is an operating system need to be change to GNU/Linux is the operatin sytem.
Linux Australia members need to send its member and have them shake end and talk and deliver in hand a letter in opposition with is decision to :
Jeremy Malcolm
Suite 11
116 Mounts Bay Road
Perth
WA 6000
Now all the lawyer need to do is find someone who bought a Box of SUSE , Mandriva(MAndrake) , Red Hat in Australia and have them sign a notaried paper stating that they have agreed to the trademar of Linux beeing the ownership of Linus Thorvalds when they bought there boxes.
He also as to push the fact that Linux is already a recognised trademark of Linux Thorvalds even do its not legally recognized as such.
The Linux trademark cannot be left unprotected or free for all to use it whas already missused in the past.
The lawyer also need to remind the Australian Registrar of Trademarks that if he whant to Open that Pandora box he might need to have a good reason to explain the Trademarking of Windows and of Apple and the refusal of Linux.
Likewise, I suggest the following for “Windows”:
In the Netherlands, the Lindows case has proven that Windows is not a generic word, but a trademark. To let it work in the U.S. too, I suggest the following:
1) Everybody stops using the word “Window” to refer to an object made out of glass to look through, it should be referred to as a G/Window.
2) All dictionaries should scrap the entry “Window” and replace it by an entry “Windows” which refers to the operating system from Microsoft
… you get the idea, I think. If everybody already uses Linux to refer to the GNU system with Linus’ kernel, how could you defend the trademark?
I saw your reply , but I dont waste my time on innacurate rubbish anymore , have a good day.
I sent a mail to [email protected] asking for some clarification of exactly Linux is supposed to mean.
This is what I got:
The LMI sublicense applies to trademarks used in connection with Linux-based
goods and services. The sublicense defines “Linux-based goods and services”
as follows:
Linux-based goods are computer systems and software using the Linux kernel
either directly from http://www.kernel.org or with modifications, or packages
bundling the Linux kernel with tools, utilities, hardware, or layered
software. Linux-based services are services that deploy, document,
facilitate the use of, or enhance Linux-based goods.
The interesting part is Linux-based services. In my interpretation major parts of the FOSS movement fits this description. A linux distribution is by defention a Linux-based goods and any service to improve a distribution is thus a Linux-based service.
So according to LMI “Linux(TM)” isn’t just the kernel. It is anything remotley connected to it.
No , the interesting parts is your missunderstanding of Trademark law and how you reach a conclusion and make a false interpretation without basic understanding.
Its really simple :
Linux is a Registered Trademark of Linus Torvalds.
Trademark govern how you can use the *name* and who own it and who allow it to be used with what.
License govern usage.
—–
No the FOSS movement is not a Linux-based sevices. FOSS stand for Free Software and Open Source Software , there is more to it then only GNU/Linux or the Linux Kernel.
Yes , a Linux distribution is by definition a Linux Based goods and Yes , any service to improve a distribution is a Linux-Based service. Yes they are covered by the trademark and Linus Thorvalds can decide to close anyone he dont like or approove of.
No the LMI only state what the trademark cover and stand for , it dont say Linux is an OS , it say Linux is a kernel who’s trademark cover all who use it, standard procedure in Trademark law.
What I suspect happened is the lawyer who made the submission did a poor submission job and someone actually did its job in a government position , now the lawyer need to do its job and the LMI and Linus Thorvalds also need to get involved.
I think the biggest problem is the fact that the Australian Government representative think the lawyer is not really acting on the behalf of Linus Thorvalds and dont whant a repeat of last time. He added possible other problem , the lawyers need to to do ther ejob.
This goes to show that when you make something Trademark it , copyright it and patent it and GPL it as soon as your starting it , otherwise problem will arise.
– Linux is the Kernel
– GNU/Linux is the OS
– GNU/Linux is the OS
_the_ OS?
Linus can stick his GNU trademark in his ass and charge himself for it.
Most people seem to be missing the point. Trademarking is reserving to yourself the exclusive right to use a name, embelm, mark or other distinguishing descriptive to identify your product from competitors’ products. If Torvald had a trademark on “Linux”, then as the holder of that trademark he can stop people from musing “Linux” in their software. Ergo, no Mandriva Linux, or Slackware Linux, or even “Linuxworld” etc. Just the same as you can’t produce a product called “Windows XP” without falling foul of intellectual property regulations, you won’t be able to use “Linux” in any way which could be seen as riding on the trademark. Torvalds ahd his cahnce when he released the original kernel to claim the name “Linux” as exclusively his, but neglected to do so – now there are hundreds of useages involving “Linux”. What would Torvalds want to do with exclusive ownership of “Linux” ? Stop anyone who doesn’t pay him a fee from using the name ?
Linux was assigned the Linux trademark after someone else tried to take advantage of it in court — they took out the trademark themselves without basis and then sued various Linux companies for their use of the name.
In other words, the existence of the Linux trademark is defensive in nature. Linus has the trademark in various countries to prevent any future occurrences of such abuse.
People on this site seem woefully unaware of history. 🙁
FFS what is with people blindly hating on trademarks? They exist to protect consumers as well as corporations.
When you buy Tylenol, you know you are getting a pain killer that has been around for a while and is known to dull pain. If the company that makes it didn’t have a trademark, Faker McScamartist could sell “Tylenol” pills made out of flour and trick people into buying them when what they actually want is painkillers, not flour.
Now, other companies are allowed to make pills containing acetaminophen, the effective agent in Tylenol. They have their own name for the pills, like Anacin-3 and Datril. It is the same with Linux. Anyone can use and modify the software. That freedom is guaranteed by the GPL. The trademark on the name is to prevent Kiddie McBackdoor from selling spyware in a box with “Linux” on the front, tricking people into installing malware when they think they will be getting an open source kernel.
Preventing Kiddie McBackdoor from using the word “Linux” to describe something other than a particular open source kernel means preventing everybody from using Linux for something other than an open source Kernel (which Australia seems to think Linus hasn’t been doing, though that’s beside my point). Other people are still free to take the code and change it though: they then have simply to market it based on the strength of the contents instead of using a name.
Similarly, Anacin-3 and Datril can market their pills on the strength of the contents, acetaminophen, the same active ingredient as in Tylenol.
Trademarking linux does not impair anyone’s freedom to use it or fork it, it prevents unscrupulous types from using the name to pass off something that has nothing to do with Linux and possibly victimizing people. It prevents them from trying to get gain on the strength of a name instead of the actual contents of their product.
I would much rather it be possible for people to be able to buy acetaminophen pills with a different name than for people to be able to sell flour tablets called Tylenol. I would much rather it be possible for people to use code from Linux in their own projects with a different name than for scammers to sell keyloggers with the name Linux.
One might ask “Why don’t drug companies simply sell acetaminophen or minoxidil pills and dispense with the goofy names?” Were this the case, what guarantee would one have that the box of acetaminophen pills didn’t contain some vanishingly small dosage? The guarantee now is that when you buy Tylenol or Datril, you know only one company can use that name, and they have proven reliable in the past. Without those names and the guarantees that only certain companies can use them, you don’t have that assurance.
“Well, what if they sold acetaminophen pills and put their trusted company name on the box? Something like acetaminophen pills by McNeil-PPC inc.” The only thing that prevents a scammer from pretending to be McNeil-PPC is the trademark that company holds on that name. Somewhere there has to be a guarantee that only certain entities can use a name, a name to which a reputation can become attached. Otherwise you would never know what you are getting.
Linus doesn’t want that. He wants you to be able to know with certainty that when you get Linux, you are getting a GPLed open source kernel of which he is the maintainer, not whatever random chunk of code some random guy decided to call Linux. If it isn’t his kernel, let it gain approval on its own merits, not by exploiting mistaken notions it has something to do with Linus’ kernel.
If you can’t see the merit in and necessity of such a situation, please don’t ever vote or do anything else that might in any way impact my life. Thank you.
-MamiyaOtaru
Your Tylenol example has a huge hole. What if the Tylenol people start selling flour tablets as Tylenol. There actually are examples. Older pharmaceutical remedies have been neutered by regulation of their active ingredients, yet the companies still sell them in a “placebo” form. And people who trust them on the basis of their old effectiveness continue to buy them on the strength of the trademark.
In those cases trademark laws have offered exactly no protection for consumers, but have protected companies that continue to trade on the name whilst at the same time reducing the effect of their product.
Say, the Tylenol people package flour as Tylenol. Sure, at first people are fooled and buy them. But this could not be prevented, whether the name ‘Tylenol’ is protected or not. It would mean to forbid the original producer to user their own name. This is simply not the playing field of trademark law. A definition by the government of what the name Tylenol means would be the only way to prevent such misuse of the name.
> In those cases trademark laws have offered exactly no
> protection for consumers, but have protected companies
> that continue to trade on the name whilst at the same
> time reducing the effect of their product.
Actually they protected the competitors. Once it becomes public that the tablets are filled with flour (and such things do become public, because many people are affected in their daily life, although it takes some time) – the name Tylenol itself is damaged. Competitive products with other names are now protected by the fact that the damage doesn’t carry over – more exactly by the fact that they could not be forced to use the name Tylenol themselves.
– Morin
By not allowing the creator or a representative foundation place a trademark on their concept, Australia is keeping the term “Linux” “free”. Why are the GPL license <insert nice word here> not loving this?