Wednesday, September 12, 2007

Is GNU/Linux a trademark violation?

Linux is a registered trademark of Linus Torvalds and is administered by the Linux Mark Institute (www.linuxmark.org). The LMI will grant sub-licenses of the Linux trademark to businesses and groups that want to use the word Linux in their product.

When you refer to registered trademarks you are supposed to use the ® symbol, or at the very least attribute the mark to its owner. The folks over at GNU don't do this, if you check out www.gnu.org, there is no mention that Linux is a registered trademark, and they do not make any attempt to attribute the mark to Linus. The same thing goes for Debian, who I might point out have taken the measures to protect their own mark.

The use of GNU/Linux is an attempt to build a new mark from an existing one. Whether or not thats the intention, its essentially what is being done. In the case of Debian GNU/Linux, they are shipping a product (whether its free or not) so it likely falls outside of fair use.

GNU has great stuff, and they deserve every bit of praise and credit as Linux does. I would encourage businesses and entities who use GNU and Linux to build products, to mention that they are GNU-based as well as Linux-based. It is something we are doing with AppOS 4.0. While GNU has great stuff and deserves credit, they do not have the right to violate a registered trademark.

So is GNU/Linux a trademark violation? Should Stallman at the very least be required to get a sub-license? From my dealings with the USPTO (Patent and Trademark Office), GNU/Linux would seem to be a new mark, and thus require sub-licensing. If Linus does not enforce this, does it threaten the Linux mark ? Just some food for thought I would throw out there to the community.

Something for businesses to think about before adopting GNU/Linux instead of just Linux.

16 comments:

Westgate said...

If the brand GNU/Linux grew from nowhere at the same time as Linux grew as a brand, then I think they have no more obligation to get a sublicense from the Linux trademark than Linux has to get a sublicense from GNU/Linux as a brand.

Linux has the prestige it has today in large part because of GNU.

John Buswell said...

Thats a very good point, if GNU/Linux was used prior to any trademark claim on Linux, then I think it would be grandfathered in.

Up on Wikipedia this article states that Stallman started using GNU/Linux after Linux became very popular in the mid-90s.

While I'm not saying Linux and GNU don't go hand in hand. I'm thinking that Stallman doesn't have the right to abuse someones trademark.

file said...

Linux and GNU were each their own mark - Linus didn't make an effort to merge them into one but the FSF did. It seems to me that should be a violation unless the FSF gets permission from Linus or the LMI. Linux was a known name long before people started trying to steal it's limelight by creating GNU/Linux.

spiritraveller said...

Does the mere fact that there are no spaces on either side of the slash make it a new mark?

It's just a description of the software that comes with the system. Debian includes Linux and it also includes GNU. Debian also distributes "Debian GNU/kFreeBSD", "Debian GNU/kNetBSD", and even "Debian GNU/Hurd". The latter not being an official release yet. (I think I hear someone chuckling in the background.)

If threatened, I'm pretty sure Debian would just stop using the word Linux. They did the same thing when Mozilla threatened them about Firefox. What used to be Firefox in Debian is now called "Iceweasel." They'd probably rename the OS to "Debian GNU/PopularPenguin" or something similar.

It seems to be a "damned if you do, damned if you don't" situation. Remember Sun's "Java Desktop" and the criticism they got for not using the word Linux in the name of their operating system? It was rightly seen as very rude to not give any credit to the fact that it was a Linux-based OS.

gav said...

so, if i'll license every letter("a", "b" .. so on) as trademark, everybody will have to obtain sublicense from me ? ;))

John Buswell said...

spiritraveller: Yes, the problem is that there are no spaces. GNU / Linux for example is NOT a new mark, its more like a sentance. However, if you look at all of the postings (Stallman, SPI, etc), they all use GNU/Linux. This is creating a new mark through combination. At least according to the USPTO.

The Linux mark, and possibly not wanting to tie a product to a particular piece of software (the Linux kernel) was probably their motivation. I know that for AppOS, we credit it being Linux-based and GNU-based, but we kept other marks out of the name. Most people refer to Ubuntu as just Ubuntu and not Ubuntu Linux.

Good points, thanks for your comments.

John Buswell said...

gav, nice try :)

You can technically trademark what you want but we are talking about registered trademarks. You don't need to register a trademark, but if it is registered you are not creating a proof of use / ownership, you are getting a sort of stamp of approval that its unique.

With the US trademark system you pay a fee for each mark, and you pay a fee for each class of service. You could probably register Linux as a new type of toilet brush, and if Clorox came out with a toilet brush called Linux, you would have a claim :)

But you could not go after say Red Hat, because you don't own the mark in that class of service (software).

I doubt registering the alphabet would get you very far in the reigstration process, but the USPTO would gladly take your money! :)

Kevin said...

Firstly, if you look at how Stallman and the FSF speak "GNU/Linux" your opinion may change... "GNU plus Linux" or "GNU Slash Linux"...

It's not the creation of a new product, it's clearly combining two exisiting products - If GNU/Linux were something other than GNU and Linux, I would argue that htis is a valid point... But calling the Linux kernel Linux is not a violation in my mind (whatever the lawyers might argue), and that means even when it happens to be mentioned next to GNU.

shawn said...

I think that GNU/Linux should not have to seek a sub license. If you look back before 1992(?) when Linus was working on an attempt of a minix clone a majority of the *nx utilities were already written by Stallman and the FSF. Linus stood on the shoulders of giants and he has admitted as much. When Stallman and Linus started collaborating the agreement was to call Linux, GNU/Linux; however, this is just obtuse so the herd mentality won with the Linux title. The whole mentality of sublicensing the name is a bit ridiculous in my opinion because it is at odds with the whole philosophy behind its origination.
</2Cents>

John Buswell said...

Kevin, you raise an interesting point about how the FSF may "speak" the term. However, the way represent it in writing (on the gnu.org site for example) is a trademark violation. In fact the GNU site does not even attribute the trademark as they are required to.

I never said it was a creation of a new product, its a creation of a new mark though.

Lets say you make a new monitoring product for Cisco Routers called XYZ. You see lots of people shipping it with Cisco routers, so you demand people refer to it as XYZ/Cisco.

A few weeks later, you'll get a nice letter from folks at Cisco's legal department asking you to cease, based on trademark infringement.

The same thing applies to GNU/Linux, because Linus owns the Linux trademark and its registered. He is just not sending out letters asking them to stop. Technically he could, or he could give them permission to use it. If he had though, you would see something on the GNU page attributing the trademark to Linus and mentioning they had permission to combine the marks.

I'm thinking that GNU/Linux threatens the validity of the Linux trademark if Linus continues to not enforce it.

John Buswell said...

Shawn thats excellent info. Do you have a URL or some kind of reference to backup the prior agreement with Linus to use GNU/Linux ?

shawn said...

I just finished the Free as in Freedom book. I have been using Linux since 1996 and thought I knew a lot until I read said book. Very good read and I don't think it is biased towards Stallman. However, after reading the book I have come to the conclusion that RMS played such a huge part in the success of Linux and has received very little credit. Additionally if Linus had not accepted the GPL as the model for licensing of linux we may be having a very different conversation right now. Maybe it would be something along the lines of how great Vista is.

http://www.oreilly.com/openbook/freedom/

Enjoy.

leeman said...

As Linus said, if GNU were a distribution you could call it GNU/Linux or what you wanted. The Ubuntu doesn't have the word Linux with its name and Linus Torvalds didn't care.

Why Stallman cares about this? Is this the way to take over Linux control or to influence the future of Linux? Is this one of the reasons why Linus didn't want to join the GPLv3? Free from Stallman!

Westgate said, "Linux has the prestige it has today in large part because of GNU." Also GNU and GPL have the prestige they have today they also owe Linux. If Linus didn't use the GPLv2 license, would Richard Stallman and GNU be as popular as today? Even though Linux uses many GNU tools, but Linus and his team worked hard to build the kernel, day and night, and many years. GNU means nothing for most of the end users, just for geeks. Most of geeks already know about the merits of GNU in Linux, so as X.org, Apache and many others.

Linux is registered as a trademark just to protect the name Linux not to be wrong used by someone. As what had happened in Australia, someone registered the Linux trademark there and wanted to collect the fee.

So I think Stallman should respect Linus, Linux developers and Linux trademark as we respect him. In his last interview with Computerworld, he asked people not to call GNU by Linux because of some non-free softwares. We respect what he means GNU. But I also think he has no right to change the name owned by other. Let the people have the freedom to call what they want.

koinonia said...

Do you realize that "GNU" is and was an operating system ( Pre-Gnu-Linux Anything)
Linus eventually allowed his "Linux" Kernel to be licensed under the GPL Licensing scheme just about the same time that Richard Stallman's GNU Operating system was being finished. So putting it quite simply, They ( GNU ) was allowed to use the "Linux Kernel", Hence "Gnu-Linux"

I have this on authority from Richard Stallman & Linus

John Buswell said...

koinonia, oddly enough yes I do know that GNU is an operating system. GNU is great, we use lots of GNU components in AppOS. I would be the last person on earth to belittle GNU.

There is a big difference between allowing the use of something to be licensed under the GPL and granting permission on the use of trademarks.

The point of this article is that GNU/Linux (which Stallman started using after Linux gained in popularity) creates a new mark. If you think thats wrong, give the USPTO a call and ask them.

There is nothing on the GNU site that attributes the Linux trademark to Linus nor is there any information suggesting GNU has permission to use Linux as part of a GNU/Linux mark.

So "technically" GNU/Linux is a trademark violation. Now Shawn commented on an interesting point about Linus allowing GNU/Linux way back, prior to Linux being popular. I couldn't find a mention of it in the book Shawn referenced, but I only had time to glance over it.

Now if Shawn is correct, GNU/Linux is not a trademark violation, but to protect the Linux mark, GNU really need (and maybe obligated by law) to attribute the trademark to Linus on their site, and add that they have permission to use Linux in the GNU/Linux combined mark.

Its all about the mark..

David said...

Linux became a mark after GNU/Linux came into usage (it wasn't registered by Linus but by a TM squatter and it took a lot of pain to finally get it transferred to Linus). I think the use of the TM is grandfathered.