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Linux is open source but its trade mark is not

An anti-software patent campaigner yesterday called on the open source community to recognise why trade marks are a good thing, after Linux-founder Linus Torvalds faced criticism for supporting licence fees for use of the “Linux” mark.23 Aug 2005

The row has blown up over licence fee demands sent out by an Australian lawyer to Australian companies that have been making use of the word “Linux” in their business names. The demands ask the firms to stop using the mark, or to obtain a sub-licence from the Linux Mark Institute (LMI).

Linus Torvalds is the original author of the Linux operating system. He holds trade mark registrations "Linux" in many countries, but gave LMI rights to sub-licence the mark. LMI is a non-profit organisation that exists "to protect the public 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 has instructed lawyers to protect the mark; and according to reports, over 90 warning letters have been sent. This has sparked accusations that Torvalds was being hypocritical in opposing software patents while seeking to enforce trade marks. He was also accused of trying to cash in on the success of the name.

In a posting, defending his position, Linus Torvalds explained that under trade mark rules the LMI is obliged to take measures to enforce its trade mark – or risk losing it.

He added:

“not only do I not get a cent of the trade mark money, but even LMI (who actually administers the mark) has so far historically always lost money on it. That's not a way to sustain a trade mark, so they're trying to at least become self-sufficient, but so far I can tell that [sic] lawyers fees to 'give' that protection that commercial companies want have been higher than the licence fees. Even pro bono lawyers charge for the time of their costs and paralegals etc”.

The row may have far-reaching consequences, according to Florian Mueller, founder of Nosoftwarepatents.com, who was prominent in the debate over Europe's proposed patent Directive earlier this year.

Mueller fears that the latest dispute is in danger of giving the open source community the appearance of being against anti-intellectual property, of whatever type.

"It's lawless and pointless to indiscriminately oppose intellectual property rights. They're the foundation of the digital economy,” he said. “We just have to ensure that they serve their real purpose of protecting innovators, and that's what software patents unfortunately don't do in 999 out of 1,000 cases.”

“Software patents are a power play that benefits anti-competitive forces and productless extortioners, but copyright and trade marks generally reward those who create and market real products," he added.

The campaigner is worried that "anti-IP radicalism could backfire" because it is, he believes, "highly detrimental to the image of open source on the right wing", and may lead to a backlash from conservative politicians. This, he fears, could result in legislation that seriously hurts open source.