Trademarks versus copyright

[Evan Leibovitch]

G. Matthew Rice wrote:

>>I make an app, call it foobar, and release it under GPL. You take my app,
>>change it, and release under the same name. What can I do about it? Pretty
>>much nothing. I don't have the money to sue you, my business is not based
>>on foobar, and you don't have much money that I can get from you. In this
>>example, if I sue you, I end up losing money on costs.
>>    
>>
>
>Plus the original author probably didn't ever formally register the
>trademark.  Then it gets to be more fun.  Anyone remember the battle over the
>US 'Linux' trademark a few years ago?  :)
>  
>

Trademarks are much looser than copyrights and harder to enforce. There 
is no international convention that requires countries to honour each 
others' trademarks, similar to the Berne convention on copyright. So one 
must register a copyright in each country in which one wants to protect 
the name (with the notable exception of the EU).

You can, like LPI, register in the US, Canada, the EU and Japan. But if 
someone wants to create a Linux Professional Institute in Burundi or 
Vietnam, and they got to the trademark office first, they could 
conceivably get the rights and operate an LPI website internationally 
from there with impunity. Note that in many countries, trademarks go to 
the first official registrant NOT to the first user.

Aside: Personally I have serious concerns over the name "Linux", even in 
countries where it has a legally registered trademark. It isn't being 
protected well at all.

Legally you're supposed to get permission to use the trademark "Linux" 
from the Linux Mark Institute (http://www.linuxmark.org) and pay a fee 
in order to use it -- how many organizations have actually sought such 
permission? How many "unauthorized" users of the name have been stopped 
or even warned? At this rate, "linux" may soon go the way of "thermos" 
and "aspirin", two one-time trademarks that have become generic words 
that anyone can use. While the words still have reasonably clear 
definitions, such definitions are not privately owned or enforceable, 
moving to the realm of dictionary writers rather than creators or lawyers.

Some companies (such as Dow which owns "Fibreglass") go to great lengths 
to protect their marks, to prevent unauthorized use AND to prevent the 
words from becoming generic. Yet next to nothing has been spent on 
protecting "Linux". If Microsoft wanted tomorrow to create a product 
called "MS-Linux", that contained zero code ever seen by Linus Torvalds, 
I don't think they could be easily stopped in court. Even should the 
industry gather the cash for a legal battle, there is a realistic case 
to be made that the trademark hasn't been adequately protected and thus 
is a generic term rather than a trademark.

Copyrights don't work anything like that. They're valid whether or not 
you register or protect them.

>Anyone can slap a (tm) beside a name.
>  
>

The (tm) is legally the trademark equivalent of "patent pending", an 
assertion that you are submitting a mark for registration but the 
process is not complete. Legally one shouldn't put a (tm) on any brand 
that isn't intended to be registered, and (tm) has absolutely no legal 
weight. That doesn't, as Matt says, stop most folks from asserting 
trademarks this way.

- Evan
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