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Debian Questions Trademark Policy 82

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

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  • Does anyone have an objection to Linus holding the trademark to the "Linux"? If so why? Im not a lawyer and this IP stuff quite frankly goes over my head.
    • Re:Trademark (Score:2, Informative)

      by majjj (644070)
      " Intellectual Property Australia said the word "Linux" was not distinctive enough to be trademarked and was similar to other trademarks owned locally. " This is the reason given in the article... dunno what it means.. someone plzz elaborate -- majjj
      • Re:Trademark (Score:4, Interesting)

        by nudeatom (740966) on Friday September 23, 2005 @08:19AM (#13628241)
        I dont want to start a flamewar, but surely "Linux" is more distinctive than "Windows", "Apple", "McDonalds" etc etc
        • Re:Trademark (Score:3, Insightful)

          by cbreaker (561297)
          Yea, I was thinking the same thing. There was no word "Linux" before, whereas all of your other examples plus countless more trademarks are very common words.
          • It would'nt have anything to do with the amount of money you have would it?
        • Re:Trademark (Score:2, Informative)

          by black mariah (654971)
          No. No it's not. This is where the double edged sword of GPL in the business world rears its head. Linux was found to not be distinctive because there are already so many companies that use the mark freely. How many companies were called "Apple Computers" before they got the trademark? How many "Microsoft Windows" were there? Compare that with how many companies used the word "Linux" in their product names before the Australian application. Red Hat, Debian, Suse, Mandriva... the list goes on. There are so m
          • Re:Trademark (Score:3, Insightful)

            by richlv (778496)
            actually, it's not only "Microsoft Windows" - it is plain windows that is considered an infrigmns@#&%@. whatever that word is spelled :)

            remember lindows ?

            i really believe that passing around trademarks for common words is wrong and that's exactly what's happening.
            • Re:Trademark (Score:1, Informative)

              by black mariah (654971)
              Incorrect. If the Lindows case had gone to court, MS would most likely have lost their mark on the word "Windows", but not on "Microsoft Windows". But they didn't let that happen. They paid Lindows $20 million if they agreed to a name change, which they did.

              The case never made it to trial.
          • Before anyone attacks me with a +3 Zealot Sword, I'd like to take this opportunity to mention that the reason this is a GPL issue is because of the openness with which anyone can use anything under the GPL. Unless you secure your trademarks up front, you risk using them due to your mark becoming generic. How many different distributions have used "Linux" in their name in the past 10+ years?
    • Re:Trademark (Score:3, Insightful)

      by thebdj (768618)
      I think the most important reason that Linus got rejected and surprisingly hasn't gotten rejected more places is because he has quite frankly waited to long. When a term becomes generic it is sort of hard to hold a Trademark over anyone and make a big fuss about it. It may vary by different countries but the same term can be trademarked multiple times so long as they are not crossing field, it is also important to rememble that symbols can be trademark if they are shown to be in someway unique.

      Seriously
      • Re:Trademark (Score:3, Informative)

        by Haeleth (414428)
        Seriously, I think that the term Linux has been in use so long that it has become a fairly generic term. While protection of the name may be somewhat important, the fact that it is in use and fairly generic would prevent others from trademarking it, where it isn't trademarked (or should at least).

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

        Generic is when you use something that might be a trademark to refer to anything vaguely similar. For example, in Britain it's common
        • Re:Trademark (Score:3, Informative)

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

          It's not necessarily cut and dried with Linux. It has become so widespread in so many flavors, distributions,
          • Xerox people used to get their knickers in a twist when someone used 'xerox' as a verb, and thier sales and technical people were required to correct you -- you weren't xeroxing something, you were photocopying it.
             
            Xerox's legal department used to send (nicely worded, non-threatening) letters to authors who referred to "Xeroxing something" in their novels or short stories, requesting that they recognize that the wording be changed to copying with a Xerox(r) brand machine.
        • When you talk about Linux, you are talking about an operating system based on the Linux kernel.

          WHICH ONE?

          You wouldn't say "Microsoft Windows is a popular linux", or talk about the "FreeBSD linux", or say "OS X is based on the Mach micro-linux", because the generic term is "operating system" or "kernel", and "Linux" is the unique name for a particular kernel used to power a particular set of operating systems.

          Tell that to all the distributions that use "Linux" in their name. It's not "Red Hat Enterpris

        • well, linux obviously doesn't refer to a generic operating system (especially since its just a kernel ;)). but, i and many others refer to any non-specific distribution as Linux. Gentoo Linux, Debian Linux, RedHat Linux, My Linux, Your Linux. i call em all 'Linux' distros. my buddy has federa, and i have gentoo; we both have 'Linux'. i'm not at all familiar with the case in aussie-land, but maybe thats the genericness of the name.
        • by schon (31600)
          the Australians called it wrong this time

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

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

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

          "The entry from the Wikipedia encyclopaedia indicates
    • Does anyone have an objection to Linus holding the trademark to the "Linux"? If so why?

      Not at all, but: IMHO Linus' reason(s) for pursuing trademark protection for the Linux name is flawed. Here's why:

      If I understand correctly, the main reason was to establish Linux as a sort of 'quality stamp', saying "if it says Linux on the box, then you can expect Linux-like quality software inside". Read 'box' as 'website' or 'vendor' if you like. Note: I'm not saying anything about how bad or excellent quality tha

  • Has it happened yet? (Score:5, Interesting)

    by Crixus (97721) on Friday September 23, 2005 @08:13AM (#13628221) Homepage
    Have ANY of these important linux questions been answered in a court yet? i.e. How enforcable is the GPL, and IS "linux" a trademark?
    • by mr_tenor (310787) on Friday September 23, 2005 @08:15AM (#13628228)
      If the GPL is "not enforcable", whatever that means, then you are using my copyrighted code without a licence and I sue you :)
      • by Bios_Hakr (68586)
        Or your code is declared Public Domain and everyone gets to use it with no license. Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.
        • Really? (Score:3, Interesting)

          by hummassa (157160)
          Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.
          Not in my jurisdiction. (and I am/was a paralegal)
          Nor in any jurisdiction with civil law and a copyright law similar to what is dictated by the Geneva convention. In those countries, the ONLY things in public domain are those (a) that do not involve creative work and (b) those whose copyrights terms expired.
          And to boot, the intent of the GPL is NOT "to allow pe
          • the ONLY things in public domain are those (a) that do not involve creative work and (b) those whose copyrights terms expired.

            What about stuff that is explicitly stated to be public domain by the author? I used to release odd bits of software with a license that said, "This software is truly public domain. You can run it, distribute it, hack it or anything else that your little heart desires." That's the exact text of the license that I made up and used.

            Is that not a legally recognized a
            • Not in every possible jursdiction, at least. MIT/X licensed works are in a much better/safer legal state. Besides, AFAICT there are jurisdictions where your heirs can reverse the "public domain" status of your work.
        • by rm69990 (885744)
          I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions. The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide by f, g, h and i.

          There is absolutely NOTHING in case law to support the fact that if you loosen your restric
          • by mpe (36238)
            I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions.

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

            The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide b
        • by mpe (36238)
          Or your code is declared Public Domain and everyone gets to use it with no license.

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

          Really, it could go either way. Since the intent of the GPL is to all
    • by m50d (797211) on Friday September 23, 2005 @08:38AM (#13628294) Homepage Journal
      How enforcable is the GPL

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

      and IS "linux" a trademark

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

  • Why shouldn't they trademark their works? Why did Linus fail to trademark Linux?
  • See Also... (Score:5, Informative)

    by Mike Connell (81274) on Friday September 23, 2005 @08:14AM (#13628224) Homepage
    The logo these guys (still) have elektrostore.se [elektrostore.se]

    some debian-legal [debian.org] discussion
    • Actually, I think it's not as much copyright infringement as "both made a spiral in Illustrator and used the same stock brush", I've used that brush in a logo but mine was slightly more detailed than just a spiral so it didn't look just like the debian logo..

      /Mikael

      • Re:See Also... (Score:3, Interesting)

        by linhux (104645)
        Actually, if you read the mail (and you seem to know Swedish, so you could), you'll see that the poster claims that the logo in question is identified as a rotated Debian logo even when compared pixel-by-pixel. Simply using the same Illustrator brush shouldn't produce that kind of similarity, should it?
        • Re:See Also... (Score:3, Insightful)

          by rebeka thomas (673264)
          the poster claims that the logo in question is identified as a rotated Debian logo even when compared pixel-by-pixel. Simply using the same Illustrator brush shouldn't produce that kind of similarity, should it?

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

          A free operating system logo made on a non-fre
      • by Saven Marek (739395) on Friday September 23, 2005 @08:42AM (#13628310)
        That begs then to ask the question why is the debian logo doing in Illustrator as a stock brush? how long has it been there?

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

        Whats that site again that lets you run petitions?
      • It's not necessarily copyright infringement, but it may be trademark infringement if

        (a) Debian held a European trademark before Elektrostore started using that logo, and
        (b) A judge could be convinced that the usage is confusing

        In this case I doubt that there's any real chance that people could be confused into thinking that Elektrostore are somehow endorsed by or associated with Debian, so it probably wouldn't be a problem for them.

  • Responsibility (Score:3, Interesting)

    by Kawahee (901497) on Friday September 23, 2005 @08:14AM (#13628226) Homepage Journal
    It's not up to the open source community to look after their own trademarks and stuff like that. There should already be initiatives for non-for-profit or (cyber)community-minded groups like the OSS community to get a hold of trademarks for non-for-profit reasons. I live in Australia, and I think we've got fair(ish) copyright laws, but not something like this. Does anyone live in a country that has this sort of system/law?
    • It's not up to the open source community to look after their own trademarks and stuff like that.

      Yeah, and other people should hold their copyrights for them too.

      If anyone has your trademark it should be you. Anything else is asking for trouble.

      • If anyone has your trademark it should be you. Anything else is asking for trouble.

        Holding trademarks tends to require you to be a legal entity. Your choices are pretty much:
        • Register it as an individual. This can be a problem if you get run over by a bus, or something.
        • Form a non-profit or charitable organisation. Legal overhead, depending on where you are. You may need to submit proper accounts and the like.
        • Get an organisation like SPI [spi-inc.org] to hold the trademarks on your behalf.
  • ...besides perhaps other Operating System communities?

    Doesn't the need for opposing standards like patents and trademarks become larger as the community grows in size, or do we accept that very large corporations have a natural, excusable reason to protect their name and value through legal bondage? I think it's bull.
  • by panurge (573432) on Friday September 23, 2005 @08:27AM (#13628264)
    I don't regard this as even a question that should need asking. If it isn't already, the name Debian should be a trademark. And if it can't be on its own, then they should get in touch with Linus, agree to recognise one another's marks, and trademark Debian Linux as a TM.

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

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

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

    • Debian already has a trademark. In the US, it's held by Software in the Public Interest on behalf of Debian. Every page on the Debian website states this in the footer.
  • Robinson's full post (Score:5, Informative)

    by Chris Pimlott (16212) on Friday September 23, 2005 @09:16AM (#13628439)
    Here's Project Leader Branden's Robinson's full (much longer) comments on the trademark issue [deadbeast.net].

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

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

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

    * Can we apply the Copyleft principle to trademark? That is, how can we turn trademark on its head and make it a tool to promote the open and free use of Debian and other projects instead of a device to restrict the rights of others?
    • All of those questions reek of the junior high mentality, which Debian is an unrivaled breeder of.

      Why even have a trademark?

      "Introducing Debian Windows..." "SCO has announced 'Debian SCO' for x86 systems..." "Red Hat Enterprise Debian" "Bob's Distribution of Debian That Comes With Free Kiddie Porn and Marijuana" Extreme examples, but you get the point.

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

  • by Whafro (193881) on Friday September 23, 2005 @09:40AM (#13628560) Homepage
    Regarding the notion that Debian might not want to "have a trademark at all," they really don't have any choice, strictly speaking.

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

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

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

    Hell, depending on the examiner, it may already be unregisterable due to lack of protection.
    • Regarding the notion that Debian might not want to "have a trademark at all," they really don't have any choice, strictly speaking.

      Of course Debian has a choice. Our mark is in fact registered with the USPTO [uspto.gov], but we could always deliberately choose not to exercise our privileges under registration or common-law trademark. I.e., we can pretend there's no such thing as trademark law for us and let the chips fall where they may. We may reach a consensus that that's not a wise option, but it remains one

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

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

    as second on the list!!, and that's not about the Linux kernel either.
  • This doesn't bode well for the future of Debian. Leaving aside squalid arguments about whether a local user group is entitled to use the term "Debian" when organizing a whip round for a barbeque (yes, a real example from the Debian mailing lists), the real question is how and whether Debian reacts to the commercial pressures now being placed on it from other software outfits (some of whose guiding lights are themselves long-time Debian players).

    For example, the new DCC Alliance seems to have gone right a
    • To answer the question in your subject, I'm right here. Where've you been? :)

      This doesn't bode well for the future of Debian.

      To be fair, the imminent death of Debian was predicted steadily for years before I became Project Leader, was again immediately upon my election, has been again today (by you), and, I'm confident, will continue to be well after I'm gone. I hope you'll forgive me if I therefore cannot find the substance in remarks like the above.

      Leaving aside squalid arguments about whether a

      • Sorry for any typos and missing link tags in the above. I'm in a bit of a rush as there's a flight [deadbeast.net] I've got to catch in about 45 minutes, and I need to wander back over to the gate area. (Useful WiFi coverage in U.S. airports appears to be a task for future generations).

      • Many thanks for taking the time to clarify some points.

        OK, I apologize for being rude which undoubtedly I was. I guess it comes from a sense of frustration that so many folks just shrug when the word Debian is mentioned, anticipating a lot of jaw-jaw and not much else. That, and a lack of tools for the job. For example, it's fairly easy to show people the fruits of desktop Linux - pop in just one Ubuntu (or Mepis or whatever) CD and leave an hour later with a machine humming away nicely and in the case o
        • Many thanks for taking the time to clarify some points.

          No problem at all. The article has now fallen off the front page, so I'm not sure how many people are still reading this, but you deserve a response.

          It's fairly easy to show people the fruits of desktop Linux - pop in just one Ubuntu (or Mepis or whatever) CD and leave an hour later with a machine humming away nicely and in the case of Ubuntu very good online user forums to help with the many questions. The user doesn't know it's all based on Debi

  • Does Debian need trademark? No.

    Does Linux need Trademark? Yes.

    Simply put the LINUS had no choice but to fight to get the trademark from some nefarious little fscker trying to extort money from OSS projects.Linky http://www.linuxmark.org/faq.html#Are_you_doing_th is_because_you_want [linuxmark.org]

    Debian neeeds not worry until the same happens with the same result. The problem in deciding to TM is that you have to therafter actively defend your trademark ( Like the LMI does now )or you lose it.(Carries with it some ba

  • The application for Linux failed because everyone and their brother use the word Linux in their product names. Including Debian. So "Linux" can refer to Debian Linux, S.u.S.e. Linux, Knopppix Linux, RedHat Linux, Pop's Chicken Fried Linux, etcetry etcetry.

    On the other hand, Debian refers to a specific Linux that originates from the Debian group. There isn't Ubuntu Debian, Microsoft Debian, or Mom's Ole Fashioned Debian. It passes the test which the Linux AU trademark app failed.

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