Apple is sued for using the word ‘Unix’

Apple is being sued by The Open Group - a San Francisco company that claims ownership of the Unix trademark - for using the term Unix in conjunction with its Mac OS X operating system without a licence. Apple has countersued, asking a judge to declare that the trademark is invalid, because the term Unix has become generic.

Though initiated nearly 18 months ago, the case has not yet gone to trial. According to a motion filed with the court on Tuesday, both companies want to have an exchange of factual documents completed by August, with a trial sought for February.

This legal battle, though separate from SCO's recent claim that Linux uses copyrighted Unix source code, adds further fire to the debate over the custody of Unix - the 30 plus year-old OS originally developed by AT&T.

Despite SCO's acquisition from Novell of much of the intellectual property associated with Unix, the Unix name itself was transferred to The Open Group, which established a licensing program for the use of the name that includes software testing as well as a licensing fee, among other things. SCO and Novell are sparring over the extent of SCO's ownership of Unix, while SCO and IBM are embroiled in a trade-secrets lawsuit.

The Open Group, also known as X/Open, sued Apple in December 2001 alleging, among other things, that Apple had infringed on its trademark. The case, filed in US District Court in San Jose, California, has been winding its way through the courts, with the parties still in the discovery process. Months of mediation meetings ended without a settlement, according to The Open Group.

Since introducing Mac OS X in March 2001, Apple has consistently touted the Unix underpinnings as part of its marketing of the operating system. Apple's Web site, for example, has a page devoted to the Unix base of the OS, including a logolike GIF that shows a metal plate bearing the words "Unix Based".

"That's kind of the one that we are least fond of," said Open Group chief operating officer Steve Nunn, who notes that the group has had a similar Unix licence logo of its own for some time.

The Open Group wants Apple to have Mac OS X undergo testing to certify that it complies with its standards for software bearing the Unix name; it also wants Apple to pay a fee. The Open Group says the costs to license the name are reasonable, based on the size of the company and the rough number of copies of the software Apple sells. In any case, no company is required to pay more than $110,000 (£67,000), said Graham Bird, vice president of marketing for The Open Group.

"Apple would be at the top of that range because they ship a lot of units," Bird said. "It's not like we are talking about bankrupting the company."

Apple argues it should be free to use the term as it sees fit, noting that there are many flavours of Unix, including FreeBSD, and that one should not have to submit to The Open Group's testing to use the term.

"Apple does not use the term Unix as a trademark in connection with Apple's product," the company said in court papers seen by CNET News.com. "Apple accurately uses the generic term Unix merely to identify or describe an aspect or feature of Apple's Mac OS X operating system. This is consistent with past and current industry standards."