Re: Linux mark extortion
On 6/17/05, Bruce Perens <bruce@perens.com> wrote:
> The userlinux project has been approached by the Linux Mark Institute
> with a demand for money in order to make use of the "Linux" trademark.
> Said demand would also apply to the Debian project. I believe their
> terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
> has made historicial use of the mark GNU/Linux and has a right to
> continue to do so.
I seem to recall saying about six months ago that there was quite a
storm brewing around open source trademarks. Looks like the storm has
struck.
It's probably going too far to say that Debian has a "right" to
continue using the trademark. I think there's a case that the
trademark has passed into common use by now for lack of diligence in
enforcement, but it's not open-and shut.
It's also clear that anyone, including Debian, can use the trademark
descriptively even when they engage in rather intrusive re-packaging
(in the US, under a Coty v. Prestonettes type of standard) -- as long
as they haven't accepted terms to the contrary at some point in the
past. That's why, the last time I engaged with the Mozilla
Firefox/Thunderbird debate, I arrived at the position that a handshake
deal with MoFo (in which they unilaterally declare that they won't
attempt to withhold the trademarks under certain circumstances, and
Debian keeps using them descriptively) was a better outcome for both
sides than a trademark license as such.
As for the DFSG and trademarks: it will surprise no one that I don't
buy into a myopic focus on copyright, and that I am of the opinion
that active attempts to enforce the Linux trademark on people who are
not rather blatantly abusing it would render packages marketed under
the Linux mark non-DFSG-free. But there's a wide margin between
"having the word 'Linux' sprinkled all over the place" and "marketed
under the Linux mark".
If UserLinux is trying to register and use in commerce a mark which
contains the substring Linux, then that's a bit different from the
descriptive label "Debian GNU/Linux". A failure to seek an
appropriate return for the registration and use of a derivative
trademark would be strong evidence of a failure to defend the mark at
all. If it were me, I'd be going after Red Hat and Montavista instead
of (or at the same time as) UserLinux, given their (IMHO) abuses of
trademark and vendor lock-in tricks respectively (what kind of jerk
capitalizes kernel APIs at random?); but that's up to the trademark
holder, I guess.
Cheers,
- Michael
(IANADD, IANAL, TINLA)
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