Torvalds has been called on to help Linux Australia Inc -- which represents open source developers orbiting the Linux software platform -- 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 US," said lawyer representing Linux Australia Inc, Jeremy Malcom.
Linux Australia Inc's entry to the fray actually began as an attempt to protect its own name after a South Australian company applied to register it as a trademark.
According to Malcom, the organisation had been using the name as an unregistered trademark since the mid '90s. But they were "pipped at the post" in lodging an official trademark application for the name with IP Australia in May last year by Adelaide-based Linux Australia Pty Ltd.
"Linux Australia is widely known in the open source community as being a non-profit organisation 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 ... we don't think that's going to be to anyone's benefit," said Malcom.
Malcom said that Linux Australia Inc received a letter from the would-be trademark owners on September 9, 2003, seeking its "cooperation" after IP Australia 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," said Malcom.
Malcom said that 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 that 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 US Linux vendors for using the word.
According to Malcom, the application would stop the name Linux being used by companies like Linux Australia without approval for commercial purposes but not place proprietary limits of the use of the name by the general public.
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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 open source software will succeed.
"Without Linux Australia Inc's cooperation it wasn't going to be registered," said Malcom.
ZDNet Australia contacted Linux Australia Pty Ltd for comment on this report but they did not respond in time for publication.
However, a former marketing executive of Linux Australia Pty Ltd, Suzannah Williams, all but admitted the application would fail. In a somewhat confusing statement (included in a letter of complaint about the incident submitted to ACIP as part of one of its current policy reviews) she wrote:
"...we applied for the trademark [but] it is unlikely to be approved as Linux is an operating system and Australia is obviously the country [sic]".
She urged ACIP to cease recognising common law trademarks to help businesses avoid the dilemma faced by Linux Australia Pty Ltd.
"It has been a big learning experience but one of cost and time for a start-up company."
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