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06.01.20

What It Would Take for Linus Torvalds to Leave Linux Foundation Without the Linux Trademark and Without Linux

Posted in GNU/Linux, Kernel, Microsoft, OSDL at 6:57 am by Dr. Roy Schestowitz

2011: Groklaw Opposes Novell’s Membership in the Linux Foundation, Due to Microsoft Ties

A registered trademark

Summary: It’s nice to think that the founder of Linux can just take his project and walk away, moving elsewhere, i.e. away from the Microsoft-employed executives who now “boss” him; but it’s not that simple anymore

THE Linux Foundation in 2020 is not the same Linux Foundation it was in 2015. It’s hardly similar to the 2010 Linux Foundation. The Foundation started as an alternative (or merger/successor) to OSDL, which had gotten too close to Microsoft and upset its employees. The founder and chief of OSDL is nowhere to be found anymore (maybe Microsoft found an ashtray for him, somewhere) and most people hardly know — or at least properly remember — OSDL.

For reasons we’ve been covering here for a very long time there may be very legitimate reasons for Torvalds and his colleagues to do to Mr. Zemlin what they did to Mr. Cohen. Considering the fact that Zemlin et al (many people from Microsoft there days; still salaried by Microsoft) do not support the GPL (which Torvalds likes) and give Microsoft’s GitHub just about everything (despite condemnations from Torvalds) one has to wonder if there’s more Microsoft in Linux Foundation than “Linux” or “Linus”.

“This research wasn’t done solely by yours truly but also an unnamed associate, a longtime GNU/Linux user (longer than myself) who thinks departure from the Zemlin-led and Microsoft-steered ‘PAC’ is well overdue, perhaps for the very survival of Linux in its current form.”So we recently did a little research into what Torvalds leaving (likely with his ‘first baby’, Linux) would entail. He’s aware that Git, his ‘second baby’ (with all due respect to his daughters) is in some sense under attack from GitHub as well (the “embrace, “enhance/extend”, “extinguish” type, where the outcome isn’t Free software but a centralised Microsoft monopoly).

This research wasn’t done solely by yours truly but also an unnamed associate, a longtime GNU/Linux user (longer than myself) who thinks departure from the Zemlin-led and Microsoft-steered ‘PAC’ is well overdue, perhaps for the very survival of Linux in its current form.

The other day I queried: “What do the papers/paperwork say about Linux (C) and (TM)? Is it public knowledge?”

“It has been public knowledge for ages,” said the associate about the trademarks (TM) — a fact I’m well aware of. Things have not changed in recent years because the official pages and statements are still the same (we assume the legal paperwork likewise), namely:

This is a statement of The Linux Foundation’s trademarks and its policy and guidelines relating to use of trademarks owned by The Linux Foundation and used by projects under The Linux Foundation. Individual projects under The Linux Foundation may have additional guidelines and requirements for the use of trademarks intended to imply compliance with certain criteria or other requirements, and in such cases compliance with such criteria and requirements is necessary.

For purposes of this document, references to trademarks or marks include all trade and service marks and logos owned by The Linux Foundation legal entity. Projects operating as separately incorporated entities managed by The Linux Foundation have their own trademarks, policies and usage guidelines.

The “Linux®” Trademark

For information regarding the Linux trademark, owned by Linus Torvalds, please see the Linux Mark Institute (administered by The Linux Foundation). Your use of the Linux trademark must be in accordance with the Linux Mark Institute’s policy.

The Linux Foundation’s Trademarks

A list of The Linux Foundation’s registered trademarks, pending registrations and trademarks in use can be found at https://www.linuxfoundation.org/trademark-list/.

The Linux Foundation Trademark Usage Guidelines

Trademarks are used to provide assurance to the community of consistency with respect to the quality of products or services with which the mark is associated. This policy attempts to strike the proper balance between two competing interests: 1) the need of The Linux Foundation to ensure that its trademarks remain reliable indicators of the qualities that they have been created to preserve and 2) the need of The Linux Foundation to ensure that community members are able to discuss the projects with which The Linux Foundation is associated and to accurately describe the relationship between The Linux Foundation and the products and services offered by others.

A trademark provides the owner with an exclusive right to authorize or control the use of the mark. Your right to use a mark of The Linux Foundation is provided for in this policy and in the statement of permitted use, if any, that may accompany the trademark notice displayed on the website dedicated to the project. A copyright license, even an open source copyright license, does not include an implied right or license to use a trademark that may be related to the project developing the licensed software or other materials. Because open source licenses permit unrestricted modification of the copyrighted software, and The Linux Foundation has no intention of interfering with that right, your right to use any specific trademark of The Linux Foundation is not determined by your use of software made available under an open source license. Your right to use a mark is conditioned upon conforming to other requirements that are directly related to the qualities that the specific mark has been created to preserve.

Proper use of The Linux Foundation trademarks by following these trademark usage guidelines protects the value of The Linux Foundation trademarks. Any use of or reference to The Linux Foundation trademarks that is inconsistent with this trademark policy, or use of marks that are confusingly similar to trademarks of The Linux Foundation, is prohibited. All uses of The Linux Foundation trademarks, and all goodwill associated therewith, will inure solely to the benefit of The Linux Foundation.

Rules that Apply to Trademarks In General

There are some basic rules that apply to any use of any trade or service mark that you do not own, including any mark of The Linux Foundation, without the express permission of the owner.

  • A trademark should never be used as a verb or noun. A trademark should be used only as an adjective followed by the generic name/noun.
  • A trademark should not be used in the plural or possessive form.
  • A trademark should not be altered or amended in any way. A mark should not be combined with any other mark, hyphenated, abbreviated or displayed in parts. A trademark that is depicted as two or more words should not be compressed into one word. A logo should not be displayed with color variations, or with other elements superimposed on top of the logo.
  • A trademark should not be used as your domain name or as part of your domain name.
  • A trademark should not be used as part of your product name.
  • A trademark should not be incorporated into your company’s logos or designs.
  • A trademark notice should be used on the most prominent and/or first appearance of each mark of The Linux Foundation, and a trademark notice should not be changed. In particular, a ™ should not be changed to an ® in a trademark notice by anyone other than the owner. If you are unsure about whether a mark of The Linux Foundation is registered in your country, please contact us for additional guidance as to what trademark symbol you should use.

There are also some basic rights that everyone has to use any trademark, which are often referred to as “fair use,” and The Linux Foundation does not intend to restrict those rights. You may make fair use of word marks to make true factual statements. But fair use does not permit you to state or imply that the owner of a mark produces, endorses, or supports your company, products, or services. Even when making fair use of a trademark, you should acknowledge the owner of the trademark with a trademark notice, such as the notice displayed on The Linux Foundation project websites.

Rules and Policies Applicable to Marks Owned by The Linux Foundation

In addition to the generally applicable rules discussed above, there are a few specific rules that we ask everyone to follow when using trademarks owned by The Linux Foundation.

  • Use the full form of any trademarks (e.g., “The Linux Foundation”) in the first reference in all documents of mass communication, including marketing collateral and web pages. You may then use any abbreviated or short form references (e.g. “TLF”) within the same the document where the full form has already been used.
  • Use The Linux Foundation’s trademarks in a form that distinguishes them from the text around them, such as by capitalization, bold or italic fonts, or with quotation marks. Any use of registered trademarks as indicated in The Linux Foundation’s Trademark List at https://www.linuxfoundation.org/trademark-list/ should include the ® symbol immediately after the first usage (e.g., “The Linux Foundation® projects develop open source….”). Any use of unregistered trademarks as listed in the Trademark List should include a TM immediately after the first usage (e.g., “The Core Infrastructure Initiative TM community seeks to secure….”)
  • Do not use The Linux Foundation trademarks in a manner that would disparage The Linux Foundation or its projects (e.g., untruthful advertising, false/misleading promotional materials, etc.).
  • Do not use a The Linux Foundation logo on the cover of a book or magazine without written permission from The Linux Foundation.
  • Do not use The Linux Foundation trademarks more prominently than your own company, product or service name.
  • Do not use a logo of The Linux Foundation on posters, brochures, signs, websites, or other marketing materials to promote your events, products or services without written permission from The Linux Foundation.
  • Do not refer to a product or service as being certified under any of The Linux Foundation’s marks unless your company has successfully undergone the requisite compliance testing and has explicit authorization to use such terms from The Linux Foundation.
  • Do not attempt to claim or assert any ownership rights in any mark of The Linux Foundation and do not attempt to register any The Linux Foundation trademark as a trademark, trade name, domain name, or “doing business as” name, alone or (unless specifically licensed) in combination with your own trademarks.

The Linux Foundation marks have been created and their use is expressly permitted for a specific purpose. Do not use logos or names of The Linux Foundation in any commercial or marketing context other than as expressly permitted in this policy unless you have obtained explicit written permission from The Linux Foundation to do so. The Linux Foundation permits the use of its trademarks for private and personal use to make t-shirts, stickers, and caps for yourself and your friends (meaning people from whom you don’t receive anything of value in return) in a manner that is consistent with the preservation of the goodwill and value of the mark.

You are also allowed to use a trademark or logo of The Linux Foundation as a link to the home page of the applicable project or to a web page on The Linux Foundation web site that is relevant to the reference so long as the link is in a manner that is consistent with the preservation of the goodwill and value of the mark. The link and all other usage of a logo of The Linux Foundation shall be done using the official versions of The Linux Foundation logos obtained from The Linux Foundation or its projects.

Here are examples of correct and incorrect uses of a logo of The Linux Foundation (noting that any actual use must also comply with the other requirements described herein):

[...]

Certain marks of The Linux Foundation have been created to enable you to communicate compatibility or interoperability of software or products. In addition to the requirement that any use of a mark to make an assertion of compatibility must, of course, be accurate, the use of these marks must avoid confusion regarding The Linux Foundation’s association with the product. The use of the mark cannot imply that The Linux Foundation or its projects are sponsoring or endorsing the product. The following are examples of proper and improper usage of these trademarks of The Linux Foundation:

Correct: <your product name> for <The Linux Foundation mark>

Correct: <your product/company name> plug-in for <The Linux Foundation mark>

Correct: <your product name> compatible with <The Linux Foundation mark>

Correct: <your product name> for use with <The Linux Foundation mark>

Correct: Quick Start for <The Linux Foundation mark> by <your company name>

Correct: <non-trademarked industry term> Day featuring <The Linux Foundation mark>

Correct: <non-trademarked industry term> Day with <The Linux Foundation mark>

Correct: <non-trademarked industry term> Day including <The Linux Foundation mark>

Incorrect: <The Linux Foundation mark> <your product name>

Incorrect: <The Linux Foundation mark> by <your company name>

Incorrect: <The Linux Foundation mark> – <your product name>

Incorrect: <your product/company name> – <The Linux Foundation mark>

Incorrect: <The Linux Foundation mark> Quick Start by <your company name>

Incorrect: <The Linux Foundation mark> Day

Incorrect: <The Linux Foundation mark> Day by <your company name>

Incorrect: <non-trademarked industry term> Day brought to you by <The Linux Foundation mark>

Questions, Comments, Concerns

We look to our community to help us retain the value of The Linux Foundation’s trade and service marks. If you have questions with respect to these guidelines or to report concerns regarding the use or misuse of a trademark of The Linux Foundation, or to obtain written permission for a proposed use of The Linux Foundation trademarks, contact: trademarks@linuxfoundation.org

Disclaimer

The Linux Foundation does not make any express or implied warranties, including but not limited to the warranties of non-infringement of any third party intellectual property rights. The Linux Foundation does not warrant that any pending trademark applications for trademarks of The Linux Foundation will result in any granted trademark protection. The Linux Foundation shall not be liable for any claims relating to user’s activities falling within the scope of the permission and user hereby agrees to indemnify, defend and hold The Linux Foundation and its contributors harmless against any such claims.

Updates

The Linux Foundation may release new versions of The Linux Foundation trademark policy or statements of permitted use of The Linux Foundation marks without notice.

This work is inspired by the Mozilla Foundation Trademark Policy and the GNOME Trademark Licensing. It is licensed under a Creative Commons Attribution 4.0 International license (“CC-BY-4.0”, available at https://creativecommons.org/licenses/by/4.0).

So that’s the legal part. We reproduce fully for preservation purposes (some day in the future these pages will change or cease to exist).

The Linux Mark refers specifically to “LINUX” and says:

The Linux Foundation protects the public and Linux users from unauthorized and confusing uses of the trademark and authorizes proper uses of the mark through an accessible sublicensing program. The Linux Foundation offers a free, perpetual, world-wide sublicense to approved sublicense applicants. In return, the sublicensee holders must agree not to challenge Linus Torvalds’ ownership of the Linux mark in any jurisdiction, and to provide proper attribution of ownership on their goods, services and elsewhere. The Linux Sublicense Agreement is available for review.

Here, you can learn more or read our Frequently Asked Questions about the trademark and LMI’s sublicensing program, apply for a sublicense to use the Linux trademark as part of your organization’s trademark, review terms of the Linux Sublicense Agreement, and report abuses of the Linux trademark that you’ve encountered. Please see the section on Fair Use for more information about public usage of the mark.

If you are interested in using Tux the Penguin in connection with your product or services, please see http://isc.tamu.edu/~lewing/linux/ for details. Tux the Penguin is an image created by Larry Ewing, and is not owned by The Linux Foundation.

[...]

Sublicense Information

Trademark Attribution

This page describes how to publicly acknowledge that Linus Torvalds is the owner of the Linux trademark.

Attribution is For Everyone

Even if your use of the Linux trademark doesn’t fall under the scope of the Linux Sublicense Agreement, you should still attribute ownership of the mark to Linus Torvalds in two ways:

1. For each web page, advertisement, or publication, the first prominent appearance of LINUX should feature the “circle R” character adjacent to the X, as follows:

Linux®

2. At the end of your web page, advertisement, publication or media broadcast, include the following text in a legible font and size:

Linux® is the registered trademark of Linus Torvalds in the U.S. and other countries.

Attribution for Sublicensees

The Linux Sublicense Agreement sets forth how the mark should be attributed by sublicensees. Sublicensees are required to place the following legend conspicuously on each piece of authorized goods, and at least once in the area of the title page of any documentation or sales literature accompanying each authorized good or service:

The registered trademark Linux® is used pursuant to a sublicense from the Linux Foundation, the exclusive licensee of Linus Torvalds, owner of the mark on a world-wide basis.

Space Limitations

The Linux Foundation understands that space limitations can make including these attributions difficult. When made necessary by space limitations, any reasonable facsimile of these attributions may be used. In case of doubt as to the proper shortened form, examples may be submitted to the Linux Foundation for approval.

Forms of the Mark

Linux is a word-mark, meaning that any form of the word is covered by the trademark registration. This includes all-caps (“LINUX®”) or the standard capitalized form (“Linux®”). Either form is acceptable to the Linux Foundation so long as it is presented in a legible font.

Who Needs a Sublicense?

In cases of fair use, members of the public may use or refer to a registered trademark without a license from the owner.

Examples of Fair Use

If you are a journalist interested in writing articles that include the term Linux, you do not need a sublicense. 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.

Some uses of Linux require the user to obtain a sublicense.

Examples of Use Requiring A Sublicense.

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 sublicense from the Linux Foundation. This is true whether or not you apply to register your trademark with a government.

If in Doubt, Find Out

Many questions are answered in the FAQ. If you are unable to locate an answer to your question, please contact us at trademarks@linuxfoundation.org.

We have omitted the FAQ. It’s not part of the legal contract.

The “tl;dr” is, “Linux” is still in Linus Torvalds’ bag, usage of the trademark is subjected to approval (there can be objections to misuse, except perhaps when Microsoft does it… because Microsoft is nowadays “special”), and the logo is in another bag, Larry Ewing’s, “and is not owned by The Linux Foundation.”

“How about copyrights? That’s the trickier part. Trademarks are simpler.”OK, we got that. So in theory Larry Ewing and Linus Torvalds can prevent Zemlin and Microsoft from misusing the name and logo.

How about copyrights? That’s the trickier part. Trademarks are simpler.

“Well, again, just to be clear,” an associate noted, “the project is continually reminding everyone that the trademarks are his: (from kernel.org, a site that changes over time and we track changes to it via RSS)

Copyright and license

Except where otherwise stated, content on this site is copyright (C) 1997-2014 by The Linux Kernel Organization, Inc. and is made available to you under the Creative Commons Attribution ShareAlike 4.0 International License.

Distributed software is copyrighted by their respective contributors and are distributed under their own individual licenses.

Legal Disclaimer

This site is provided as a public service by The Linux Kernel Organization Inc., a California 501(c)3 nonprofit corporation. Our
servers are located in San Francisco, CA, USA; Palo Alto, CA, USA; Corvallis, OR, USA; Portland, OR, USA and Montréal, Québec, Canada. Use in violation of any applicable laws is strictly prohibited.

Neither the Linux Kernel Organization nor any of its sponsors make any guarantees, explicit or implicit, about the contents of this site. Use at your own risk.

Trademarks

Linux is a Registered Trademark of Linus Torvalds. All trademarks are property of their respective owners.

“However,” an associate explained about the Foundation (LF), “I am not sure how much the public knows about that nor how much LF intends to honor the legal situation. They are busy wiping their collective assess with the GPL, for example. There would be a fight, but he [Torvalds] can take them and go elsewhere.”

There are lots of truly dubious things at the LF; we’ve got a large wiki page listing some of these…

“I am aware of the above,” I said regarding trademarks, “but I am more interested in copyright assignment. I assumed there might be something like a CLA, knowing the LF produces crap advocacy to that effect.”

“Torvalds’ right-hand men are Microsofters (not by choice; not his choosing), which does not help…”Notice all the whitepapers the LF has been producing lately; they’re not about freedom but about corporations.

It’s nice to think that Torvalds can kick out that corporate influence over his project/s. Only if developers would follow him could he achieve this properly (at risk of severe media attacks on him for doing so and we saw a sample of it two years ago when he was painted as rude, sexist and so on); nowadays approximately 80% of the coders are of the ‘Big Tech’ cabal (not only GAFAM). They also have a grip on the media; see what the media did to RMS last year…

Torvalds’ right-hand men are Microsofters (not by choice; not his choosing), which does not help…

“Some copyrights in Linux are also Microsoft’s.”If Torvalds leaves, it leaves the project at risk of being even more tightly controlled by Microsoft, a company that loves to control its opposition like it controls its own assets.

Some copyrights in Linux are also Microsoft’s. Not kidding…

So code could be revoked to make “Linux” less attractive than some other thing. MINUX?

“The code is different,” the associate noted regarding copyrights. “It’s mostly under the GPL and The copyrights are held by the various contributors. There is no copyright assignment requirement. Some other projects require filling out paperwork to transfer copyright for all contributions. Linux does not do that and there is not even a mention of it in the developers’ guide though license labeling is covered in detail. However, it’s not spelled out. I presume that is because copyright law spells it out already.”

“For many years Microsoft lawyers and lobbyists were working to besiege Linux legally as they loathe the GPL.”Imagine a scenario where a group of developers is incited to reject Torvalds (remember what happened to RMS) and work on some LF-led kernel with the same code but a different name. It’s not unthinkable. Money and bribed media can accomplish all sorts of things… and Torvalds can probably envision such scenarios, which become deterrents.

“However,” the associate continued, “one of the sore points for the detractors get who angry at Linus is his support of the GPL:

For many years Microsoft lawyers and lobbyists were working to besiege Linux legally as they loathe the GPL. Now they buy keynote talks inside copyleft/GPL conferences. They try to control the narrative while actively discouraging the GPL’s adoption and badmouthing it in the media, sometimes through proxies.

“Perhaps deep inside Torvalds already feels rather powerless — uncertain that he’s still controlling Linux and can take it away from all the corporations that hide behind the name “Linux Foundation”.”Long story short(er), Torvalds can absolutely take his trademark and walk elsewhere, leaving the LF without the ability to use the name “Linux” (the LF itself would need to rename itself). But with copyright assignments all over the place (unlike FSF, Canonical etc.) Torvalds does not exercise full control over all the pertinent contributions and 2 years ago we saw that partly IBM-owned media (which caused him to be temporarily removed from his own project!) isn’t on his side. Perhaps deep inside Torvalds already feels rather powerless — uncertain that he’s still controlling Linux and can take it away from all the corporations that hide behind the name “Linux Foundation”.

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