From: Linus Torvalds <torvalds@osdl.org>
Newsgroups: fa.linux.kernel
Subject: Re: [OT]Linus trademarks Linux?!!
Date: Sun, 21 Aug 2005 00:46:25 UTC
Message-ID: <fa.g1q92r7.ng87ql@ifi.uio.no>
Original-Message-ID: <Pine.LNX.4.58.0508201706330.3317@g5.osdl.org>

Gaah. I don't tend to bother about slashdot, because quite frankly, the
whole _point_ of slashdot is to have this big public wanking session with
people getting together and making their own "insightful" comment on any
random topic, whether they know anything about it or not.

[ And don't get me wrong - I follow slashdot too, exactly because it's fun
  to see people argue. I'm not complaining ;]

And I don't tend to worry about the Inquirer and the Register, because
both of them are all about being rough and saying things in ways that
might not be acceptable in other places, and that's what makes them fun to
read. So when they then write something nasty about Linux (or me), hey, it
goes with the territory.

But I was really hoping this particular wanking session wouldn't overflow
into Linux-kernel.

Anyway, the posting Jesper points to is a fine one. Partly to show that
this trademark thing sure as hell isn't anything new, and partly because
the rules really haven't changed.

So let's repeat that link again, just as background,

	http://boudicca.tux.org/hypermail/linux-kernel/2000week04/0654.html

and then people should think a bit (and maybe research) what a trademark
really means.

A trademark exists to set up some rules about using a "mark" (name, logo,
you name it) in trade. The people who pay to license (or get a unique
trademark of their own) a certain name do so because they care about that
particular name. People who don't care, don't pay. It's really that easy.
It's about getting legal protection for a particular name.

For example, this means that a _user_ would never pay a single cent over a
trademark. I don't know why/how the Inq even came to that "companies to
pay for using free software" idea. It shows a total lack of understanding
about what a trademark is in the first place.

Now, a company that has a company name usually _does_ want to protect
their name. Not always, but it's kind of embarrassing (and easily an
expensive and big bother) if somebody else trademarks that name, and then
sends a cease-and-desist order to you and forces you to switch to
something else.

So you'll find that most commerical entities protect their name some way,
regardless of _what_ that name is. For example, let's say that you called
your company or distribution "Lipro", then you'd like to trademark that.
Goodie. It's pretty expensive, but most companies feel that it's more than
worth it to know that you've got exclusive rights to that name, and nobody
else can force you to change,

So the first point here is that regardless of you call your Linux
distribution "Linux Something" or something totally different, you'll want
to protect that name if you are serious about making a big commercial
distribution. Exactly because you do _not_ want to be in the situation
that somebody else hijacks your name from you.

Now, you can do that protection two different ways: you can make up a
unique name of your own ("Red Hat" or "Linspire" or "Debian" or whatever),
and trademark that. Then the trademark office keeps track of things, and
guarantees that there are no clashes (within your business area).

Or, alternatively, you can ask somebody else who already has a unique name
if they might "sublicense" their name in combination with something else.
In the case of "Linux", that name is already guaranteed unique by the
trademark office, so let's say that you felt that you wanted to have a
unique name that contained that, you'd approach LMI and say "I want to
call my magazine LinuxJournal, can you write up paperwork that makes sure
that nobody else can do so"?

And let's repeat: somebody who doesn't want to _protect_ that name would
never do this. You can call anything "MyLinux", but the downside is that
you may have somebody else who _did_ protect himself come along and send
you a cease-and-desist letter. Or, if the name ends up showing up in a
trademark search that LMI needs to do every once in a while just to
protect the trademark (another legal requirement for trademarks), LMI
itself might have to send you a cease-and-desist-or-sublicense it letter.

At which point you either rename it to something else, or you sublicense
it. See? It's all about whether _you_ need the protection or not, not
about whether LMI wants the money or not.

As to the "cease-and-desist or sublicense the mark" letters, they are
sadly directly brought on by the requirements of maintaining a trademark.
If you have a trademark, you have to police it, which means that you have
to do trademark searches to see who uses it in a commercial setting, and
make sure that they use it properly.

So to answer a particular question that came up here on Linux-kernel:
"Does the linuxjournal.com pay $5000?".

First off, I don't know where the $5000 came from - it's different for
different classes of people. Secondly, LinuxJournal was one of the
companies that raised the money to get the "Linux" trademark in the first
place! As a result, they don't pay a red cent, because they had been part
of protecting the name in the first place. And yes, they paid real lawyers
to do so. Their sublicense got "grandfathered in".

Finally, just to make it clear: not only do I not get a cent of the
trademark 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
trademark, so they're trying to at least become self-sufficient, but so
far I can tell that lawyers fees to _give_ that protection that commercial
companies want have been higher than the license fees. Even pro bono
lawyers chanrge for the time of their costs and paralegals etc.

Linux International has paid for it, maddog has worked on it on his own
time, and various companies have helped chip in (like the original
companies and people who got the trademark in the first place).

			Linus