The LMI was set up by Mr Torvalds with John Hall as non-profit organization to license the use of the word Linux and ensure it was retained as a trademark by being vigorously defended, in keeping with trademark law.
Its attempt to do so in Australia by registering the term Linux as a trademark hit a snag last week as Intellectual Property Australia rejected the bid made by Linux advocacy group Linux Australia Inc on behalf of Mr Torvalds on the grounds that Linux was not distinctive enough to be trademarked.
The LMI has rejected reports that the attempt failed however. An initial ruling like this is normal. LMI now has the opportunity to offer clarifying facts and evidence. LMI is confident that the final determination will be favorable, it stated.
Linux Australia moved to attempt to trademark Linux in Australia in 2004 after a dispute with an Australian open source services firm, Linux Australia Pty Ltd. Having asked Mr Torvalds to step in and help it protect the Linux name, Linux Australia Inc then took up the baton of trying to register Linux as a trademark on his behalf, in conjunction with the LMI.
Linux Australia’s attempt to register the trademark has not been without controversy as some individuals and organizations have seen it as an attempt by Mr Torvalds to make money via trademark licensing.
Mr Torvalds himself denied that he made any money from the LMI and trademark licensing in a posting to the Linux Kernel Mailing List in August, adding that such steps were necessary for the LMI to be seen to be protecting the trademark in keeping with trademark law.
Now the LMI has issued a statement clarifying its position, noting that more than 40 applications to trademark Linux have been made in 24 countries by people other than Mr Torvalds, and that its goal is to prevent these applications from posing a challenge to Mr Torvalds’ trademark.
LMI knows that despite appearances to the contrary, some of these third party registrants do not wish to challenge Torvalds’ rights in the mark, it stated. However, a sizeable number of third party registrants have registered the Linux mark for the wrong reason: to prevent others from using the mark.
The LMI further pointed out that any company that is using the word Linux as part of a trademark legitimately has a vested interest in helping Mr Torvalds and the LMI protect the mark – and that the best way to do that is to take out a sublicense that would help the LMI to pay for any costly legal battles.
The cost of a Linux trademark license fee depends on whether a licensee is a non-profit or for-profit business and, in the case of the latter, how much revenue it expects to make from goods and services related to Linux. At most it costs $5,000 for vendors expecting revenue of over $1m.
