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Old August 21st 07, 12:11 PM posted to rec.games.chess.computer
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Default When did Linus Torvalds first own a trademark on the word "Linux?" -Guy Macon




Ralf Callenberg wrote:

The point is, you called yourself as a first class expert in trademark
issues. Telling Pascal you had forgotten more about this topic, than he
ever would learn about it. A quite bold statement. Well, and than you
missed such a basic fact about trademarks.


The claim that I missed a basic fact about trademarks has yet to
be established. I presented what I believe to be a valid argument
that it is Kenneth Sloan who is wrong when he claims "trademarks
have to be claimed" and "Nothing is trademarked unless you explicitly
say that it is." He chose to reply with a personal attack rather
than respond to the content of my argument.

Since you appear to agree with Mr. Sloan, perhaps you can comment
on the following argument. I am competely open to the possibility
that I may be wrong, but I am unlikely to be convinced by insults.

-----------------------------------------------------------------

WHEN DID LINUS TORVALDS FIRST OWN A TRADEMARK ON THE WORD "LINUX?"

Kenneth Sloan claims that "Trademarks have to be claimed" and
that "Nothing is trademarked unless you explicitly say that
it is." It is my understanding that one can own a trademark
before even knowing what a trademark is, because trademarks are
established by use in commerce, not by making claims.

uspto.gov/web/offices/tac/doc/basic/appcontent.htm#basis
does not mention anything about explicitly saying that
it is a trademark or making any particular claim. It
simply says

"the mark must appear on the goods, the container for the
goods, or displays associated with the goods, and the
goods must be sold or transported in commerce."

It is my contention that, if Kenneth Sloan is right, then
Linus Torvalds does not own a trademark on the word "Linux."
It is also my contention that Kenneth Sloan *is* wrong and that
Linus Torvalds *does* own a trademark on the word "Linux."
It all hinges on how and when Linus Torvalds gained ownership;
when he claimed that it was a trademark or when he first used
the word "Linux" in commerce?

You may wish to refer to [ http://lwn.net/Articles/148228/
and [ http://lwn.net/Articles/147941/ ] as you examine my
reasoning.

Consider the following timeline:

Linus Torvalds created Linux in 1991. At that time and for
years afterward he made no trademark claims.

In 1994 one William R. Della Croce Jr. of Boston made what appears
to be the first claim that "Linux" is a trademark, and in 1996
started demanding 10 percent royalties on sales from Linux vendors.

In the resulting lawsuit, R. Della Croce's claim was nullified
and the Linux trademark was legally assigned to Linus Torvalds.
See [ http://www.linuxmark.org/ ] ("This is the official website
of the Linux Mark Institute, exclusive licensor of the Linux
trademark on behalf of its owner, Linus Torvalds.")

Especially instructive is the Petition to Cancel filed by
Linus Torvalds and others: [ http://lwn.net/Articles/148228/ ].
Nowhere in that document is there any claim that anyone other
than Croce was the first to claim the trademark, only that it
was in use in commerce long before he did so.

It is my belief that "Linux" became a trademark when the first
copy was sold -- even though nobody at the time explicitly
claimed that it was a trademark.

I am open to being shown that I am wrong, but doing so requires
something a bit more convincing than shouting "you are stupid!"

Also see:

The Linux Trademark - Tempest in a Teapot
http://www.groklaw.net/article.php?s...50816092029989

Jon "maddog" Hall on Linux Trademarks
http://lists.linux.org.au/archives/l.../msg00084.html

--
Guy Macon
http://www.guymacon.com/

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Old August 24th 07, 07:48 PM posted to rec.games.chess.computer
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Default When did Linus Torvalds first own a trademark on the word"Linux?" -Guy Macon

On Tue, 21 Aug 2007 11:11:17 +0000, Guy Macon wrote:

Kenneth Sloan claims that "Trademarks have to be claimed" and
that "Nothing is trademarked unless you explicitly say that
it is." It is my understanding that one can own a trademark
before even knowing what a trademark is, because trademarks are
established by use in commerce, not by making claims.


From my understanding of trademarks it's a mixture of the two. You have a
trademark as soon as you first use a unique term or phrase to describe
your product (or at least unique to that area), but if you want to have a
registered trademark it must be formally registered in each country in
which you want to use the trademark. The main advantage of registering is
that it makes it much easier to win court cases. So I'd agree with you
that Linus had a trademark as soon as he called it Linux, but he doesn't
get to use the funny r symbol and it's not on quite such solid foundations
as something like Microsoft.

There are two important differences between SCID and Linux that may be
relevant. The first is that you can lose a trademark through abandonment,
and with Shane being so quiet for the past two or three years it could be
considered that he has abandoned his trademark. The second is that
trademarks must be defended, and with Pascal having used SCID for a few
months now, apparently with Shane's knowledge it would seem that he isn't
defending it.

I should point out that I'm not a lawyer, and that whether or not it's
legal doesn't have much to do with whether it's moral or ethical.
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Old August 25th 07, 12:43 AM posted to rec.games.chess.computer
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Default When did Linus Torvalds first own a trademark on the word"Linux?" -Guy Macon




wtfai wrote:

Guy Macon http://www.guymacon.com/ wrote:

Kenneth Sloan claims that "Trademarks have to be claimed" and
that "Nothing is trademarked unless you explicitly say that
it is." It is my understanding that one can own a trademark
before even knowing what a trademark is, because trademarks are
established by use in commerce, not by making claims.


From my understanding of trademarks it's a mixture of the two. You have a
trademark as soon as you first use a unique term or phrase to describe
your product (or at least unique to that area), but if you want to have a
registered trademark it must be formally registered in each country in
which you want to use the trademark. The main advantage of registering is
that it makes it much easier to win court cases. So I'd agree with you
that Linus had a trademark as soon as he called it Linux, but he doesn't
get to use the funny r symbol and it's not on quite such solid foundations
as something like Microsoft.


That is my understanding as well.

If I understand David Richerby correctly, he believes that it
doesn't actually become a trademark until you claim it does,
and that the first use in commerce is used to establish your
rights when and if you first claim that you have a trademark.

I am not a trademark lawyer, and his arguments seem plausible
based on the wording of the various uspto.gov documents; I can
see reading them either way.

David, does the above accurately describe your understanding of
Trademark law? If not, please correct me. If so, I would like
to post the two different understandings in misc.int-property
and see what the lawyers have to say.

There are two important differences between SCID and Linux that may be
relevant. The first is that you can lose a trademark through abandonment,
and with Shane being so quiet for the past two or three years it could be
considered that he has abandoned his trademark. The second is that
trademarks must be defended, and with Pascal having used SCID for a few
months now, apparently with Shane's knowledge it would seem that he isn't
defending it.

I should point out that I'm not a lawyer, and that whether or not it's
legal doesn't have much to do with whether it's moral or ethical.


I agree. Trademarks are really just a basis for a lawsuit.
If Pascal infringes and Shane doesn't complain, the lawsuit
never happens. If Shane knew of Pascal's infringement and
did nothing, the courts would not look kindly on Shane waiting
until Pascal's use was well-established and suddenly sucker-
punching Pascal with a lawsuit.

If, on the other hand, Shane doesn't know about the infringement
or for some reason such as sickness cannot possibly respond and
Pascal takes advantage of his sickness to infringe, I suspect that
Shane might be able to win a lawsuit after he got well. While we
all tend to notice when the law is arbitrary and unfair, in most
cases fairness really does triumph.

Here is another twist; it sure does seem to me that for many,
many years Linus Torvalds *didn't* defend the name Linux. He
charges a fee now, but for years he pretty much let anyone use
it as they pleased. Obviously the court didn't even consider
ruling that he lost the trademark through abandonment or through
not defending it in the way that he is defending it now. Clearly
there are subtleties here that I am ignorant of.

--
Guy Macon
http://www.guymacon.com/

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Old August 25th 07, 04:30 AM posted to rec.games.chess.computer
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Default When did Linus Torvalds first own a trademark on the word "Linux?"-Guy Macon

Guy Macon wrote:

Here is another twist; it sure does seem to me that for many,
many years Linus Torvalds *didn't* defend the name Linux. He
charges a fee now, but for years he pretty much let anyone use
it as they pleased. Obviously the court didn't even consider
ruling that he lost the trademark through abandonment or through
not defending it in the way that he is defending it now. Clearly
there are subtleties here that I am ignorant of.


Linus Torvalds didn't have to "defend" the trademark as long as other
people didn't use it for different products and didn't ask third parties
to pay royalties for the privilege.

when they did, he filed suit.

This seems to be a much saner approach than the one taken by (say)
Disney's lawyers.

--
Kenneth Sloan
Computer and Information Sciences +1-205-932-2213
University of Alabama at Birmingham FAX +1-205-934-5473
Birmingham, AL 35294-1170
http://www.cis.uab.edu/sloan/
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Old August 25th 07, 06:29 AM posted to rec.games.chess.computer
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Default When did Linus Torvalds first own a trademark on the word"Linux?" -Guy Macon

Guy Macon http://www.guymacon.com/ wrote:
If I understand David Richerby correctly, he believes that it
doesn't actually become a trademark until you claim it does,
and that the first use in commerce is used to establish your
rights when and if you first claim that you have a trademark.


Yes. (You can also claim and register a trademark in advance of using
it but that's not relevant to the situation that spawned this
discussion.)


The following is all based on the assumption that Shane owns a
trademark on the name Scid.

If Shane knew of Pascal's infringement and did nothing, the courts
would not look kindly on Shane waiting until Pascal's use was
well-established and suddenly sucker- punching Pascal with a
lawsuit.


I believe that to be the case.

If, on the other hand, Shane doesn't know about the infringement
or for some reason such as sickness cannot possibly respond and
Pascal takes advantage of his sickness to infringe, I suspect that
Shane might be able to win a lawsuit after he got well.


This is not necessarily the case. I don't know how Shane's incapacity
would play out in any hypothetical lawsuit. Ignorance of previous
infringements isn't necessarily an argument, though -- the court might
say that, if the trademark was truly valuable to the owner, he should
have taken more effort to find out about breaches.

Here is another twist; it sure does seem to me that for many,
many years Linus Torvalds *didn't* defend the name Linux. He
charges a fee now, but for years he pretty much let anyone use
it as they pleased.


Well, he let anyone use it to refer to the system we know as Linux.

Obviously the court didn't even consider ruling that he lost the
trademark through abandonment or through not defending it in the way
that he is defending it now.


Well, the court may have *considered* it but it didn't rule that way.


Dave.

--
David Richerby Generic Transparent Tool (TM): it's
www.chiark.greenend.org.uk/~davidr/ like a hammer but you can see right
through it and it's just like all
the others!
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