- By Grant Gross -
Leading Linux distribution publisher Red Hat has become more aggressive in protecting its trademark lately, and the founder of one discount Linux CD seller isn't happy about the cease and desist letter he recently received.
Red Hat spokeswoman Melissa London says the company hasn't changed its trademark policy, but it's been more actively pointing out trademark violations since the release of Red Hat 7.2 in late October. The change in practice came because of complaints Red Hat received about discount CDs containing Red Hat Linux that didn't include all its features or service options. London says, "What we were finding is that customers were calling us demanding support... we can't stand behind those products."
But Jason Phillips, founder of CD seller/auction house UnixCD.com says it seems like Red Hat wants to stop all discounted and free distributions of its operating system. Phillips received a letter last week asking his company to stop selling discounted CDs with the Red Hat brand.
"You cannot even say that the CD-ROM has Red Hat on it or contains Red Hat Linux," he says. "They say doing this is a violation of their trademark. By doing this no one will be able to identify if a CD-ROM has Red Hat Linux on it unless they buy Red Hat's expensive boxed set. They think they've figured out a a way to discourage the GPL distribution of Red Hat Linux and make it impossible for customers to buy it from anybody but them. But what they are doing is a GPL violation."
This change in enforcement has caused some confusion, London admits, but she says it's not a violation of the GNU GPL, the Free Software license that governs Linux. Basically, users are still able to download Red Hat Linux for free and programmers are still able to base their own distributions on Red Hat, but anyone who distributes a non-authorized copy of Red Hat can't call it Red Hat without the company's permission. Call it Fred's Linux or Generic Linux -- several distributions including Mandrake have used Red Hat as a base to build their own products -- just don't call it Red Hat.
"In the Open Source space, our name is our bread and butter," says London, explaining Red Hat's position. "Red Hat is trying to practice its own quality control."
Retailers that sell boxed versions of Red Hat won't be affected by the change, London says, but discount CD sellers like CheapBytes.com could be, she says. "This is not an attack on the little guy, but they are getting a certain amount of cachet by selling the Red Hat CDs."
Here's part of the Red Hat trademark policy: "Redistributing Red HatÂ® Linux That Has Been Downloaded From An FTP Site or Duplicated From A Red Hat-Produced CD: You may not state that your product 'contains Red Hat Linux X.X.' This would amount to impermissible use of Red Hat's trademarks. You may resell the boxed version of your software that your purchased from Red Hat so long as you sell the original
disc's and documentation included with the boxed version. However, if you have registered the product with Red Hat for purposes of obtaining
support services, you may not transfer your right in those support services, and you must advise the purchaser that they are not receiving support services."
Phillips says such a trademark would effectively put an end to the discount CD sales at places like CheapBytes.com and LinuxCentral.com. Neither of those retailers returned emails from NewsForge, but a phone operator at LinuxCentral said it's unlikely anyone there knew anything more than Phillips' complaint.
Although the GPL doesn't specifically address the redistribution of the name of the program, Phillips believes the license also has to refer to that program's title, in this case Red Hat Linux. Without the right to freely distribute the name of the program, confusion would reign, he argues. "If you replace the
word 'program' with book, story or report in the GPL, you will see very easily that everyone has the right to distribute not only the story itself but the title as well. Trying to bypass the GPL license for your own personal gain is not the goal of the GPL, and the GPL makes very clear that you give up traditional copyright rights when you license it in this manner ... No one can forbid the free distribution of neither the GPL code or the name used to identify the code."
Phillips says contributors to the Linux code should question Red Hat's trademark enforcement. "Thousands of people from around the world contribute to the GPL's
Open Source, free model in a effort to forbid this kind of activity," he says. "Many hundreds of thousands of volunteers make improvements to the Red Hat project and/or the independent projects that make up Red Hat Linux ... How are these people who contribute so much time and effort into this model supposed to react when they are told the only way to knowingly acquire a copy of Red Hat or any other project is to buy it back from the licenser even though the licensees has the same rights in regards to copying, distribution as the licenser?"
He adds: "What if all the GPL projects that make up Red Hat tell Red Hat they can no longer use their projects' titles to inform the public about what's included in Red Hat?"
Phillips received the cease and desist from the Arent Fox Kintner Plotkin & Kahn law firm of Washington, D.C., last Thursday. In part, the letter reads:
"Recently, it has come to our attention that you are selling unauthorized copies of Red Hat's software on the eBay auction service that improperly bears the RED HAT mark. While Red Hat permits others to redistribute the software that constitutes Red Hat Linux, Red Hat does not authorize any person to use the RED HAT mark in
association with such redistribution, except by express agreement. Please review the guidelines at the link provided above. These Guidelines state the proper
use of Red Hat's marks. Your Red Hat Linux 7.2 auction sites are not in compliance with those guidelines.
"Our client is concerned that your unauthorized sale of Red Hat's software under the RED HAT mark in this manner is likely to create confusion, mistake and/or deception among consumers with respect to the source, origin, sponsorship or approval of the products sold under your company name. By continuing to sell and/or distribute Red
Hat's software under the RED HAT mark without authorization, you or your company may be held liable for infringing Red Hat's intellectual property rights and engaging in acts of unfair competition in violation of the Lanham Act."