"You
have submitted that the applicant is the originator of the kernel
that forms the core of all Linux-based operating systems," wrote
the Registrar. "This may be the case. However, the test to
determine the inherent adoption of the trade mark to distinguish in
the marketplace is not merely whether the term is
one coined by the applicant alone and has application to this
particular computer operating system. The main test is whether
other traders are likely to need to use the word LINUX, without
improper motive, to describe their own goods and services."
Google searches and a definition from Wikipedia showed generic
use of the term. "The average consumer would not see the word LINUX
as a badge of origin for the goods and services, but as a term that
describes those goods and services," observed the letter.
A second ground of objection was the mark's similarity to
existing marks, owned by International Data Group Inc: LINUXWORLD
and LINUXWORLD CONFERENCE & EXPO with a penguin logo. To
overcome this, Torvalds would need to show prior use of his mark –
and sufficient evidence of that had not been submitted at the time
of the letter.
The letter, dated 31st August, gave Torvalds' agent
until 7th September "to resolve the problems" with the
application. According to ZDNet Australia the deadline has since
been extended; but it is possible that the application will be
abandoned.
