Out-Law / Your Daily Need-To-Know
Linus Torvalds cannot register the word 'Linux' as a trade mark in Australia because other traders need to use the term to describe their similar goods and services, according to a letter of objections from the Registrar to Torvalds' agent, obtained by ZD Net Australia.
"You have submitted that the applicant is the originator of the kernel that forms the core of all Linux-based operating systems," wrote the Registrar. "This may be the case. However, the test to determine the inherent adoption of the trade mark to distinguish in the marketplace is not merely whether the term is one coined by the applicant alone and has application to this particular computer operating system. The main test is whether other traders are likely to need to use the word LINUX, without improper motive, to describe their own goods and services."
Google searches and a definition from Wikipedia showed generic use of the term. "The average consumer would not see the word LINUX as a badge of origin for the goods and services, but as a term that describes those goods and services," observed the letter.
A second ground of objection was the mark's similarity to existing marks, owned by International Data Group Inc: LINUXWORLD and LINUXWORLD CONFERENCE & EXPO with a penguin logo. To overcome this, Torvalds would need to show prior use of his mark – and sufficient evidence of that had not been submitted at the time of the letter.
The letter, dated 31st August, gave Torvalds' agent until 7th September "to resolve the problems" with the application. According to ZDNet Australia the deadline has since been extended; but it is possible that the application will be abandoned.
