Dana Blankenhorn understands how trademark law works. Evidently, Linus Torvald’s lawyers don’t. And if Dana’s wrong and Linus is right, why, that will be an interesting new chapter in the IP rent-grab-a-thon: Open source trademarks, where quality control (the sine qua non of trademark licensing) is, to say the least, besides the point.
UPDATED: Luis Villa writes, in the comments, regarding this post, originally posted August 24, 2005:
Those articles are more than four years old now, Ron, and the policy has proven fairly robust- as far as I know there have been no Linux(tm)-related trademark lawsuits since the policy was put in place, and all major Linux vendors support the policy. (That said, licensing is now free, rather than having a nearly de minimis cost, as it has been folded into the work of the Linux Foundation.) (Read the rest..)
Originally posted 2011-08-16 12:34:57. Republished by Blog Post Promoter
As far as the quality control question goes, an apt comparison may be to the various university-mark related lawsuits that took place in the 70s when universities realized their brands actually had market value. Those brands had been uncontrolled for decades (anyone who wanted to could make a ‘Pitt’ or ‘Wisconsin’ t-shirt featuring school mascots, logos, etc.), but courts (correctly) overlooked the non-existent quality control and upheld the university’s marks, because there had been implicit quality control of various sorts (as well as plain-old-equity concerns.) I admit that Dana’s understanding of trademark is pretty close to the traditional/dominant understanding, but I think if you look more closely at the open source trademark question you’ll see informal mechanisms of implicit quality control which should protect the marks if/when they ever go to court.
(I am a long-time reader of this blog, and will probably be writing a paper on this topic some time in the spring. Would love to bounce it off you when it is in less drafty form if you’re game 🙂
Thanks, Luis. One danger of Old Post Promoter — which I’m in love with — is the danger of old, half-baked ideas getting put back out in the shop window not having since seen the warmth of that oven, and you don’t know you’re looking at repeats until the end of the piece. So thank you very much for your comment, part of which I have sliced off to add to the post itself, and — voila! Now I have a bona fide updated post! This outcome provides exactly the wrong kind of reinforcement for a batter-eater such as myself.
Substantively speaking, by the way, I have written extensively, and, coincidentally, recently, on the ersatz quality-control concept, which is really just a stand-in for “a right of endorsement” that you seem to agree with me is indeed entrenched as the present state of the law but is not entirely consistent with the Lanham Act’s original intentions or that annoying thing called statutory language.
Thanks for the your other comments and, yes, I look forward to hearing from you!
I think we’re probably on the same page (certainly none of this is in the statute) though you’ll forgive me for not going into it in much detail right now- I’m in the middle of my honeymoon 😉 Look forward to reading the other recent post when I return home…