August 11, 2004 10:46 AM PDT

Torvalds asked to step into Linux trademark fight

Linus Torvalds has been called on to help an Australian open-source advocate in a battle to stop local companies from trying to trademark the word "Linux."

Linux Australia Inc.--which represents open-source developers orbiting the Linux software platform--has asked the Linux creator to prove his right to trademark the term in Australia, much as he did in the United States in 1997.

"It's been proven for America, and now we need to do the same for Australia because, obviously, the word Linux has been used in Australia by different people than use it in the U.S.," said Jeremy Malcom, a lawyer representing Linux Australia.

Linux Australia Inc. entered the debate originally as an attempt to protect its own name, after a South Australian company applied to register it as a trademark.

According to Malcom, the open-source organization has been using the name as an unregistered trademark since the mid-1990s. But they were "pipped at the post" in lodging an official trademark application for the name with IP Australia, the government's intellectual-property regulator, in May last year by Adelaide-based Linux Australia Pty. Ltd.

"Linux Australia is widely known in the open-source community as being a nonprofit organization for the Linux community as a whole, and to have a corporation using that name out in the marketplace is only going to cause confusion," Malcom said. "We don't think that's going to be to anyone's benefit."

Malcom said Linux Australia Inc. received a letter from the would-be trademark owners on Sept. 9, 2003, seeking its "cooperation" after examiners returned an "adverse response" to the South Australian applicants.

That appears to have prompted Linux Australia Inc. to take action, volunteering to take up the cause on behalf of Torvalds and the international Linux community.

Shortly after Linux Australia Inc. questioned the Adelaide-based company's request in January this year, it lodged its own trademark application for the word "Linux." However, IP Australia also questioned that application, as it didn't appear to have Torvalds' support.

"We've got some more information coming from Linus Torvalds as the trademark owner, and that will assist us getting that through, hopefully," Malcom said.

Malcom said the information would help prove that Torvalds' use of word Linux has continued for longer than any of the competing local trademarks bearing the name.

It wouldn't be the first time Torvalds has had to make such a case. Torvalds had to wrestle the term back under the control of the open-source community after lawyers representing William Della Croce, who had registered the name as a trademark, started demanding royalties in 1996 from U.S. Linux vendors for using the word.

According to Malcom, the application would stop the word Linux from being used by companies like Linux Australia without approval for commercial purposes, but would not place proprietary limits on the use of the name by the general public.

It's unclear how long Linux Australia Pty Ltd.'s application went unnoticed by Linux Australia Inc., but it appears unlikely that its claim on the word synonymous with the open-source software will succeed.

"Without Linux Australia Inc.'s cooperation, it wasn't going to be registered," Malcom said.

Linux Australia Pty Ltd. did not immediately respond to requests for comment.

Andrew Colley of ZDNet Australia reported from Sydney.

 

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