At one time, only Bayer could sell acetylsalicylic acid using the name Aspirin, and everyone knew the source of the product. But through lack of active enforcement of the trademark, it eventually fell into use as a generic moniker for the drug. In the 1920s, courts officially ruled that Aspirin was a generic name and that consumers did not associate the name with any particular producer.

Almost a century later, Linus Torvalds is faced with a similar issue with the trademark "Linux ." While the Linux Mark Institute (LMI) is drawing some criticism for enforcing the trademark Linux, such criticism is unwarranted, given the nature of trademarks and the alternative to their enforcement.

Trademarks Convey Source

Trademarks are different from other types of intellectual property. The trademark can be a mark, a word, a color, a sound or some other "label" that functions as an indicator of the source of goods or services for which the trademark is used. When it no longer does so, the trademark is not doing its job.

Take, for example, Dell. If you buy a computer with the word "Dell" stamped on the front, you are justified in assuming that it was made by Dell, will perform similarly to other Dell-branded computers you've used or at least that it underwent some quality review by someone at Dell. The trademarked name Dell conveys the source to the consumer.

Enforcing a trademark merely prevents a company from duping the marketplace into believing that the product it is selling actually came from the trademark owner if, in fact, it did not. Anyone can sell personal computers that perform several functions, but trademark law prevents others from indicating that the source of the goods was one that did not actually have a hand in making the goods.

Trademarks Are Not Patents

There is concern among Linux advocates that patent rights might constrain the open-source distribution and development model. A patent holder has the legal right to enforce a patent, even if that patent holder contributed nothing to the production of the product that uses the patent-covered functionality. This right can put a damper on distribution if the patent holder chooses to limit the patent's licensing.

This right is not a concern with trademarks, however. As long as goods or services are distributed without confusion as to their source, they can be distributed freely. Even with a mark as strong as Linux, one might freely distribute a product indicating that it is "derived from Linux" or "works with Linux." (continued...)

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