Torvalds trademark looms over Australian Linux industry

As reported by ZDNet Australia on Tuesday, Linux Australia Inc has secured Linus Torvald's support to register the word "Linux" as a trademark with Australia's intellectual property regulator. The move is designed to prevent local companies attempting to claim the word as their own, but it will also throw open the possibility that local Linux vendors will start paying royalties to trade on the term for the first time.

Linux Australia Inc's lawyer, Jeremy Malcom, yesterday conceded that Australian companies using the word Linux to promote and sell their products weren't currently legally obliged to pay royalties for the privilege as long as they weren't trading their wares internationally.

If the organisation's trademark registration is approved, the protective ethos behind the Linux Mark Institute (LMI) -- Torvald's authorised trademark licensor -- would be given legal teeth in Australia for the first time.

"The LMI doesn't have currently have a trademark [on Linux] in Australia -- they've got a trademark in the US -- so you can't really force people in Australia to take out a license to use the word Linux in Australia," said Malcom.

It's unlikely that Australian Linux vendors will be losing sleep at the prospect of Australia Inc succeeding in its application.

The LMI explains its existence on its Web site as being to prevent "greedy and capricious individuals" attempting claim exclusive rights over the word Linux. It espouses liberal fair use policy and a mission to keep the word "Linux" as free as the code behind the operating system it denotes -- not to amass profits at the expense of fledgling open source companies.

At worst, Australian vendors of Linux software, hardware and other paraphernalia bearing the name, might be asked to pay LMI a one-off royalty fee of between US$300 and US$600 and to include the Linux trademark boiler plate below in their marketing material:

"The registered trademark LinuxÃ,® is used pursuant to a license from Linux Mark Institute, authorized licensor of Linus Torvalds, owner of the Linux trademark on a worldwide basis."

Or they may carry on untouched by the legal two-step altogether.

When it comes to enforcing LinuxÃ,® it appears that the LMI has considered Australia to be something of a frontier territory, not worthy of stealing its attention from the US and international jurisdictions dominating its purview.

That may be contributing to confusion in some sectors of the Australian Linux industry as to what their rights and responsibilities are when using the internationally trademarked word.

A quick search in the Australian Securities and Investments Commission's (ASIC) national business names index for the word "Linux" reveals around 100 companies using the term in one guise or another.

EverythingLinux managing director, Anthony Rumble, has been using "Linux" commercially in various guises since 1992. Yesterday he told ZDNet Australia he had on rare occasions sold Linux branded goods offshore through his Web site but that he generally shied from the practice.

He claims that on the strength of discussions he's had with US-based Linux vanguards he is of the understanding that he was not obliged to pay royalties.

Technically said Malcom, trading offshore would expose an Australian Linux vendor to the international trademark obligations.

But while EverythingLinux sits in a legal grey area, Malcom admitted that some Australian companies don't pay royalties to LMI even though they currently have an obligation to do so.

"That's something for the Linux Mark Institute to enforce if they choose to but, theoretically it should be happening at the moment," said Malcom.

Malcom said he didn't believe the trademark's local inception would have a large impact on the community. Most well known Linux companies operating in Australia such as Red Hat Linux, he said, were already paying license fees to the LMI through their operations in the US.

However, reading over the LMI's trademark license, it's hard not to get that sense that some Australian companies will come under scrutiny if IP Australia recognises trademark locally. The LMI frowns on companies that attempt to the word in a way that implies sole or central authority over the operating system.

Linux Australia Inc has already made it clear it wants Adelaide-based Linux Australia Pty Ltd to change its name -- that would seem to leave Queensland-registered Linux Pty Ltd with little room to move.

And would Linux Enterprise Software Solutions (Queensland again) have any potential to put some LMI noses out of joint? What would it make of Linux Magazine Pty Ltd or Linux Australia Holdings?

For now it appears that Linux Australia Inc's lawyers still have some work to do before the group can start thinking about its message for Australia's Linux industry.