From a posting by Linus on the Linux-Kernel mailing
list:
Re: Using “linux” in a domain name
Date: Tue, 18 Jan 2000 20:28:45 -0800 (PST)
From: Linus Torvalds
To: “Eric A. Stephens” , Tony Zafiropoulos , “Jaron J.
Rubenstein”
Cc: Kernel Mailing List
[ sorry for the off-topic thing to “linux-kernel”, it’s just the
best medium I can think off off-hand ]
Ok,
I’ve been getting tons of email about the trademark thing due
to the action of stopping the auctioning off of linux-related
names, so instead of just answering individually (which was how I
started out), I’ll just send out a more generic email. And
hope that slashdot etc pick it up so that enough people will be
reassured or at least understand the issues.
And hey, you may not end up agreeing with me, but with the
transmeta announcement tomorrow I won’t have much time to argue
about it until next week 😉
Basically, the rules are fairly simple, and there really are
just a few simple basic issues involved:
– I (and obviously a lot of other people) do not want to have
“Linux” as a name associated with unacceptable (or borderline)
behaviour, and it’s important that “Linux” doesn’t get a name of
being associated with scams, cybersquatting, etc etc. I’d
personally hate that, for rather obvious reasons. I _like_ being
proud of Linux, and what has been achieved. I’d rather not have to
apologize for it..
– Trademark law requires that the trademark owner police the use
of the trademark (unlike, for example, copyright law, where the
copyright owner is the copyright owner, always is, and always will
be unless he willingly relinquishes ownership, and even THEN he
ends up having rights).
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..”
– Even with things that aren’t scams or something like that,
VALID uses of “Linux” may be bad if they mean that other valid uses
of “Linux” are blocked.
Those are the kind of ground rules, I think everybody can pretty
much agree with them..
What the above leads to is
– I’m required to ask people to acknowledge the trademark. When
you use the term “Linux” in official marketing literature etc, you
should acknowledge it as a trademark owned by me. Not because I
love seeing my name in print, but simply because of the “policing”
issue (#2) above.
(And no, that does NOT mean that you have to add that to normal,
everyday use of the term. Common sense rules the day, think of the
situations where you see the silly “xxxx is a trademark of yyyy”,
and realize that yyyy may not really care except the legal issues
force them to 😉
– _Intent_ matters. It matters a lot.
If your intent is to use the word “linux” as part of a real
Linux project, that doesn’t mean that you automatically absolutely
have to get permission from me. That’s the LAST thing I want. I
want “Linux” to be as free as possible as a term, and the real
reason for having a trademark in the first place was to _protect_
it rather than use it as some kind of legalistic enforcement
thing.
But, for example, if your intent is to register “mylinux.com”
(made up example, I don’t know if it is registered or not) only in
the hopes of selling the domain name for mucho dinero later, then
that kind of intent is not something I (or anybody else, I think)
would find really acceptable, because now the use of “linux” in
this case has really been a question of blocking somebody ELSE from
using the term and using it to get money.
This is where the cybersquatting laws come in, for example,
allowing the use of a trademark as a way to make sure that such
squatting activity does NOT happen.
– Being “specific” is _good_. Being specific largely avoids the
problem of many people/organizations wanting the same name. We had
an example long ago of somebody who would have wanted to register
“Linux Expert” as a servicemark, yet obviously that is a pretty
generic term. Not good, if it means that there will be confusion
about who owns the term.
In contrast (to give some tangible examples), something like “VA
Linux” or “Red Hat Linux” oviously isn’t a generic term: it’s a
very _targeted_ term for something very specific. Those kinds of
names do not detract from other peoples ability to call _their_
Linux company something else.
– Finally, you have to judge the “officialdom” and the
importance of the business side of your usage. Not because I or
anybody else really cares all that much, but more because of the
“pain factor” if the name is asked for by somebody else.
Basically, ask yourself the question: “What if somebody else had
a project, and happened to chose the same name for his project as I
have for mine, how strong a protection do I want for MY version of
the project?”
Also, ask yourself: “Would anybody ever have reason to question
the name, and do I need to make provisions for protecting this
particular instance of it” (and note that “anybody” may not be me
as the trademark owner myself, but it may be a competitor who wants
to make life uncomfortable for you)
If you decide that you want some official protection from the
mark, that probably means that you want to own your own version of
the trademark, ie a “service mark” or a “combination mark”. There
are obvious cases where such a thing is wanted – you should not be
surprised to hear that various Linux companies own their own
combination marks, or have at the very least gotten that ownership
verbally approved by me pending getting the paperwork done.
So basically, in case the trademark issue comes up, you should
make your own judgement. If you read and understood the above, you
know pretty much what my motivation is – I hate the paperwork, and
I think all of this is frankly a waste of my time, but I need to do
it so that in the future I don’t end up being in a position I like
even less.
And I’m _not_ out to screw anybody. In order to cover the costs
of paperwork and the costs of just _tracking_ the trademark issues
(and to really make it a legally binding contract in the first
place), if you end up going the whole nine yards and think you need
your own trademark protection, there is a rather nominal fee(*)
associated with combination mark paperwork etc. That money actually
goes to the Linux International trademark fund, so it’s not me
scalping people if anybody really thought that that might be the
case 😉
I hope people understand what happened, and why it happened, and
why it really hasn’t changed anything that we had to assert the
trademark issue publically for the first time this week. And I hope
people feel more comfortable about it.
And finally – I hope that people who decide due to this that
what they really want is trademark protection for their own Linux
trademark, that they could just wait a week or two, or contact
maddog at Linux International rather than me. We’re finally getting
the shroud of secrecy lifted from transmeta (hey, we’ll have a real
web-site and zdtv is supposed to webcast the announcement
tomorrow), and I’d rather worry about trademarks _next_ week.
Ok?
Linus
(*) “Nominal fee”. What an ugly sentence. It’s one of those
things that implies that if you have to ask, you can’t afford it.
In reality, it’s more a thing where both intent and the size of the
project will make a difference – and quite frankly it’s also a way
to slightly discourage people who aren’t really serious about it in
the first place.
–
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