How does it affect user groups Re: [SGVLUG] Linux Trade mark ...

[Dustin]

On Mon, 22 Aug 2005, matti wrote:

> Excellent question!! I was thinking about that
> recently.. so far I have not seen anything 
> definitive on it...
> 
> anyone see something definitive on it.

OK, it's Google Time. :-)

First, Maddog Hall explains

http://lists.linux.org.au/archives/linux-aus/2005-August/msg00084.html

the reasons for this, as does PJ:

http://www.groklaw.net/article.php?story=20050816092029989

And, about five years ago, Linux himself explained why we needed to get
to where we are now:

http://people.redhat.com/zaitcev/notes/linus-linux.tm.txt

Very opinionated summary: Trademark law was made for the benefit of rich
corporations and sucks mightily if you are not a rich corporation, but we
are forced to play by their rules not ours.  The licencing fees
essentially pay for the cost of defending the mark because people like
Maddog were going broke doing it out of their own pockets.  In other words
they are the lawyer's tax we all pay for being to cowardly to take control
of the law for our own interests.  LMI is defending the mark as much as
necessary so that Linus can retain the rights and no more.

Anyway, it is my uninformed opinion that there is *no chance* that anyone
is ever going to bother us (except for one easily fixable minor detail
which I mention somewhere below), and if they do we'll know about it long
before because the first time someone leans on any LUG anywhere in the
world it will be *all over* Slashdot, and our local Slashdot addicts will
warn us so we can change our name to something advocating the death
penalty for practicing law without a conscience. :-)

"Don't worry, be happy." :-)

BTW, here is an example we can all admire and aspire to:

http://humorix.org/articles/2000/05/netsol-lawsuit/

OK, longer answer:

If you think it would be better to let the name be free, consider how
you'd have liked it if, say, SCO had registered the name and gotten
control of it.  It *was* free while it was just decent people involved 
with Linux, but as soon as it became a globally recognized name it became 
a target for the same kind of greed that ruins everything else and makes 
lawyers both rich and numerous.

Here are some examples of why we *WANT* LMI to defend the trademark on 
behalf of Linus and the community:

* The original lawsuit, which I believe started all this, was the fact
  that a scumbag in Boston obtained the mark in 1995, and it took a 
  lawsuit and some charity from a legal firm to take it away from him.
  Linus didn't start this--greed did.

	http://www2.linuxjournal.com/article/2559

* 1999 Linux Today story on some Korean opportunist who did the same thing
  (probably because he heard about the US situation and wanted to cash in
  himself, given the dates) registered "Linux" as a trademark in Korea in
  1995, obtained the rights in 1997, and started sending threatening
  letters in 1999:

	http://linuxtoday.com/news_story.php3?ltsn=1999-08-28-003-05-NW

  The Korean government more or less said it was a mistake and he got it 
  because the examiner had never heard of linux and ***"During the public 
  response period of the application, there was no objection from
  anyone."***  The lawsuit to challenge it was being paid for by the local
  Linux community out of their own pockets, because there was no LMI to
  do it for them.

* Same thing in Australia, just different greedy amoral actors:

	http://news.zdnet.com/2100-3513_22-5305663.html

The bottom line is ***we didn't start this, they did,*** but we have to
play by their stupid rules.  Worse, we have to do it internationally one
jurisdiction at a time, and that costs even more money.  Better LMI do it
for us and at least make the fees predictable than force each local
community to do it ad-hoc.

As for who can use it, I haven't seen LUGs mentioned explicitly on the LMI 
web page

http://www.linuxmark.org/

so we have to guess, but it's implied pretty strongly that nobody cares
what we do.  From the main page:

	"The express and only purpose of this organization is to set up a
	simple, self-funding procedure by which interested companies and
	individuals developing Linux operating system products and those
	desiring to sell services, accessories and related Linux
	paraphernalia can obtain a non-exclusive and simple trademark
	license for the proper use of the mark."

I note we are NOT "developing Linux operating system products" nor are we
"desiring to sell services, accessories and related Linux paraphernalia".

Under "Who Needs A Linux Licence",

http://www.linuxmark.org/who_needs.html

LUGs are not explicitly mentioned but we do find several relevant phrases
which I will quote out of context:

	"Others may use or refer to a registered mark in some
	circumstances without a license from the owner if it is for a
	so-called "fair use,"... Linus and LMI are not trying to develop a
	revenue source from licensing, so our interpretation of the
	trademark laws may be a bit more liberal than those of other
	trademark owners."

This example shows that even some money-making ventures do not need a 
licence:

	"If you are printing up pencils, stenciling T-shirts, or
	distributing coffee cups with a legend on them like "Linux®is the
	greatest!" or "Even my Mother uses Linux®!" this is normally
	considered "fair use"."

I don't know where I saw it and don't have the knowledge to say if it
makes sense, but I seem to remember reading that descriptive use in
general is "fair use," and those look like descriptive uses.  There is
little doubt that the Linux in "LUG" is entirely descriptive.

This one shows that the main sticking point is if you are using "Linux" as 
part of some kind of trademark of your own:

	"On the other hand, if you plan to market a Linux - based product
	or service to the public using a trademark that includes the
	element "Linux,"  such as "Super Dooper Linux" or "Real Time Linux
	Consultants" you are required to apply for and obtain a low-cost
	sublicense from LMI."

I have a hard time seeing how "SGVLUG" is a trademark.  If it is, we'll
lose it anyway whenever anyone wants to challenge it because we have no
money or inclination to sue anyone. :-)

As far as whether LMI is likely to come after us, the "what about other 
people using the mark without a licence?" page

http://www.linuxmark.org/other_people_usage.html

says

	"If you know of people, organizations or companies using the Linux
	mark as part of a trademark without a sublicense, or if you see
	references to Linux® without the proper attributions, please feel
	free to let them know about LMI.  You should also notify us with
	the details. We will contact that entity or person as soon as
	possible."

Note that this implies that they aren't even interested in what we do
unless we use Linux as part of a trademark or without proper attributions.
We aren't doing the first.  We may actually be using it without proper
attribution, though, and I *can* imagine a polite letter asking us to
attribute it.  We should probably do this anyway without being asked,
because (IIRC) acknowledging their ownership of the mark strengthens their
claim and makes it easier (read: less costly in the long run) to defend
it.

If we really care, we can get a definitive answer very easily:

	"If you have any questions about the need for a sublicense from
	LMI, please contact us at the addresses on this web site. We will
	try to respond promptly. In many cases you will find that
	obtaining the sublicense is simple and low cost protection from
	any problems in the future. In other cases, we will send you a
	letter confirming that you do not need the license because of the
	nature of your use."

But I suggest we ignore the problem until we get a letter from a lawyer[1]
or until the heat death of the universe, whichever comes first. :-)

Dustin

[1] This points up another reason to just forget about it--how exactly do
you sue SGVLUG?  The legal system is, by and large, run by and for the
wealthy, and without dues, funds, or even formal papers, I'm not sure that
we legally exist.  In practice you might have to sue the members
individually, but it would never get there because we'd just change our
name first.  I suggest SGVALMDUG (San Gabriel All Lawyers Must Die User's
Group).  I'm totally serious about that, BTW, because then we could have a
section of the web site explaining our surprising name. :-)