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Torvalds Defends Linux Trademark, Personal Reputation

By Jennifer LeClaire
Aug 23, 2005 10:18 AM PT

There's a new controversy surrounding Linux, but this time it has nothing to do with Microsoft supporters. Linux founder Linus Torvalds recently began defending the trademark for his namesake software, and, as a result, he has found himself having to defend his own reputation in the open-source community.

Torvalds Defends Linux Trademark, Personal Reputation

Torvalds' lawyer last month reportedly wrote to 90 companies in Australia and asked them to relinquish legal claim to the name Linux. The letter instructed the companies to purchase a license from the Linux Mark Institute, a non-profit organization established to sublicense the Linux trademark. The cost ranges from US$200 to $5,000.

The demand has put Torvalds in the open-source spotlight. Some have accused the Linux pioneer of cashing in on his open-source success, which many in the open-source community see the move as being at odds with the free and open nature of the open-source movement in the first place.

But Torvalds said over the weekend that he is not profiting from the sublicensing of the Linux mark, because the legal costs exceed the license fees.

"Not only do I not get a cent of the trademark money, but even [the Linux Mark Institute] has so far historically always lost money on it," Torvalds said in a posting to the Linux Kernel Mailing List.

A Greedy Hypocrite?

Torvalds said the letters to Australian companies were intended to maintain the trademark and pointed to a posting made to the mailing list five years ago to back up his position.

"Trademark law requires that the trademark owner police the use of the trademark," Torvalds said in the 2000 posting. "This is nasty, because it means, for example, that a trademark owner has to be shown as caring about even small infringements, because otherwise the really bad guys can use as their defense that 'Hey, we may have misused it, but look at those other cases that they didn't go after, they obviously don't care.'"

While some accuse Torvalds of greed, others say he is a hypocrite because they believe his criticism of software patents contradicts his attempt to enforce the Linux trademark. Torvalds declined to comment on this particular issue in his Saturday post.

Avoiding Confusion

Kevin Gray, head of the intellectual property practice group for the Dallas office of Fish & Richardson, told LinuxInsider that the underlying reason for having trademark laws is to avoid customer confusion as to the source of goods and services. As a result, the law imposes a duty on the trademark owner to assist in policing the use of those marks in the marketplace.

"Although there is nothing that requires an owner to actually charge money for use of a mark, it is understandable that owners would charge something, if for no other reason than to attempt to cover the cost of such policing efforts," Gray said. "My understanding is that the amounts being charged are not even enough to cover the legal costs of such efforts, so I don't think folks should rush to condemn a man who has a demonstrated track record of donating IP of great value to the general public."

Examining Market Impacts

The question is, how might a mandate to sublicense the Linux mark impact the open-source software market? Legal analysts have suggested that depending upon the amounts charged to obtain a license, it could affect the market greatly.

"At some price point, folks who have a current interest in Linux -- as well as those who may consider the technology for future projects or products -- would avoid use of Linux," Gray said. "That said, the amounts being reported for licenses at this point sound nominal, especially when viewed in the context of the total cost for use of the technology."

Gray said it is understandable that folks might be surprised that a very commercial angle to this open-source technology has emerged. When viewed in context, though, he said it actually offers such benefits in the control of the Linux name that most should welcome it, even if there is a slightly increased cost.


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