Main
Date: 21 Aug 2007 11:11:17
From: Guy Macon
Subject: 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 tradek
>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 tradeks.

The claim that I missed a basic fact about tradeks 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 "tradeks
have to be claimed" and "Nothing is tradeked 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 TRADEK ON THE WORD "LINUX?"

Kenneth Sloan claims that "Tradeks have to be claimed" and
that "Nothing is tradeked unless you explicitly say that
it is." It is my understanding that one can own a tradek
before even knowing what a tradek is, because tradeks 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 tradek or making any particular claim. It
simply says

"the k 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 tradek on the word "Linux."
It is also my contention that Kenneth Sloan *is* wrong and that
Linus Torvalds *does* own a tradek on the word "Linux."
It all hinges on how and when Linus Torvalds gained ownership;
when he claimed that it was a tradek 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 tradek claims.

In 1994 one William R. Della Croce Jr. of Boston made what appears
to be the first claim that "Linux" is a tradek, 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 tradek was legally assigned to Linus Torvalds.
See [ http://www.linuxk.org/ ] ("This is the official website
of the Linux k Institute, exclusive licensor of the Linux
tradek 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 tradek, only that it
was in use in commerce long before he did so.

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

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 Tradek - Tempest in a Teapot
http://www.groklaw.net/article.php?story=20050816092029989

Jon "maddog" Hall on Linux Tradeks
http://lists.linux.org.au/archives/linux-aus/2005-August/msg00084.html

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





 
Date: 24 Aug 2007 18:48:12
From: wtfai
Subject: Re: When did Linus Torvalds first own a trademark on the word
On Tue, 21 Aug 2007 11:11:17 +0000, Guy Macon wrote:

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

From my understanding of tradeks it's a mixture of the two. You have a
tradek 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 tradek it must be formally registered in each country in
which you want to use the tradek. 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 tradek 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 tradek through abandonment,
and with Shane being so quiet for the past two or three years it could be
considered that he has abandoned his tradek. The second is that
tradeks 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.


  
Date: 24 Aug 2007 23:43:40
From: Guy Macon
Subject: Re: When did Linus Torvalds first own a trademark on the word



wtfai wrote:
>
>Guy Macon <http://www.guymacon.com/> wrote:
>
>> Kenneth Sloan claims that "Tradeks have to be claimed" and
>> that "Nothing is tradeked unless you explicitly say that
>> it is." It is my understanding that one can own a tradek
>> before even knowing what a tradek is, because tradeks are
>> established by use in commerce, not by making claims.
>
>From my understanding of tradeks it's a mixture of the two. You have a
>tradek 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 tradek it must be formally registered in each country in
>which you want to use the tradek. 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 tradek 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 tradek 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 tradek.

I am not a tradek 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
Tradek 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 tradek through abandonment,
>and with Shane being so quiet for the past two or three years it could be
>considered that he has abandoned his tradek. The second is that
>tradeks 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. Tradeks 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 tradek 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/ >



   
Date: 25 Aug 2007 06:29:27
From: David Richerby
Subject: Re: When did Linus Torvalds first own a trademark on the word
Guy Macon <http://www.guymacon.com/ > wrote:
> If I understand David Richerby correctly, he believes that it
> doesn't actually become a tradek 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 tradek.

Yes. (You can also claim and register a tradek 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
tradek 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 tradek 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
> tradek 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!


   
Date: 24 Aug 2007 22:30:47
From: Kenneth Sloan
Subject: Re: When did Linus Torvalds first own a trademark on the word "Linux?"
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 tradek 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 tradek 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 [email protected]
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/