Jonathan Oxer
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Blog > Patents and trademarks: aren't they the same?
>> Patents and trademarks: aren't they the same?
Fri, Aug 19th 1:44pm 2005: Linux
I was asked an interesting question this morning, and it really highlights some of the confusion about this whole "Linux" trademark issue. To paraphrase the question:
"what's the difference between a guy who owns a patent charging a Linux company a licence fee for using his patented technology and the LMI (or whoever) charging me a fee for using the name Linux in my business name?"
Good question. On the face of it they seem pretty much the same. They both use the law to prevent or regulate someone else from doing the same thing as yourself.
However, they're actually quite different in terms of *what* they prevent or regulate. Patents regulate people wanting to *do* the same thing as yourself, such as write a piece of software that is functionally equivalent. Trademarks regulate people wanting to appear to *be* you, ie: use your identity. In effect it's a measure to prevent identity theft.
So patents can be anti-competitive (or at least anti-productive) in the software world by preventing other people competing on a level playing field. They are specifically intended to grant a limited monopoly.
Trademarks, however, don't in any way prevent fair competition. They don't stop anyone else going into business and doing the exact same thing as an existing company. What they do prevent is someone stealing the name of an existing product or company and then using that name to their benefit.
In this case the effort behind securing the "Linux" trademark is simply to ratify that Linus Torvalds, through LMI, is the rightful owner of that identity, and that he has the right to prevent other people using his identity in ways he doesn't like. It's not a move to gouge funds out of companies working with Linux: it's a defensive measure so that if/when a situation arises where someone tries to abuse the name (as has happened a number of times already) he has legal recourse to do something about it, thus maintaining the value of the name for everyone else who is using it in an appropriate way.
I was asked an interesting question this morning, and it really highlights some of the confusion about this whole "Linux" trademark issue. To paraphrase the question:
"what's the difference between a guy who owns a patent charging a Linux company a licence fee for using his patented technology and the LMI (or whoever) charging me a fee for using the name Linux in my business name?"
Good question. On the face of it they seem pretty much the same. They both use the law to prevent or regulate someone else from doing the same thing as yourself.
However, they're actually quite different in terms of *what* they prevent or regulate. Patents regulate people wanting to *do* the same thing as yourself, such as write a piece of software that is functionally equivalent. Trademarks regulate people wanting to appear to *be* you, ie: use your identity. In effect it's a measure to prevent identity theft.
So patents can be anti-competitive (or at least anti-productive) in the software world by preventing other people competing on a level playing field. They are specifically intended to grant a limited monopoly.
Trademarks, however, don't in any way prevent fair competition. They don't stop anyone else going into business and doing the exact same thing as an existing company. What they do prevent is someone stealing the name of an existing product or company and then using that name to their benefit.
In this case the effort behind securing the "Linux" trademark is simply to ratify that Linus Torvalds, through LMI, is the rightful owner of that identity, and that he has the right to prevent other people using his identity in ways he doesn't like. It's not a move to gouge funds out of companies working with Linux: it's a defensive measure so that if/when a situation arises where someone tries to abuse the name (as has happened a number of times already) he has legal recourse to do something about it, thus maintaining the value of the name for everyone else who is using it in an appropriate way.
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