Re: firefox -> iceweasel package is probably not legal
On Tuesday 05 December 2006 13:57, Jeff Carr wrote:
> I notice that recently you have complied with Mozilla's request to not
> use their trademarks for your browser packages. However, you can't
> also use their trademark to switch users to a competing product.
> ("bait-and-switch") The same trademark issues are why there is not a
> package called openoffice. It must be called openoffice.org.
First off, whoa. These are awfully specific facts and directions you are
giving here, and unless you are a licensed lawyer or a representative of
Mozilla, I would strongly avoid the use of the term "must" and "can't."
Suggest all you want, but directives such as the above are tantamount to
practicing law without a license.
That having been said, I am inclined to agree that this presents a very murky
issue made complicated by the debian packaging system. If 'apt-get install
firefox' is functionally equivalent to 'apt-get install iceweasel' then you
likely have either plan old "consumer confusion" or "initial consumer
confusion." Both are bad.
In response to Mr. Armstrong's cite to Qualitex Co. v. Jacobson Prods. Co, I
believe there is a critical misunderstanding of the functionality doctrine.
To use the example from the case, if the very shape of a patented lightbulb
becomes a mark (by obtaining secondary meaning in the minds of consumers)
that will not be entitled to protection because it would stop all competition
beyond the length of the patent. Such is not the case here... there is
nothing about the firefox code or browser that is inherently "firefox."
Iceweasel can compete with firefox without having to use the firefox mark.
It is a made up term (there is a legal term for this... but I can't remember
what it is right now...), thus eligible for the highest level of trademark
protection and Debian appears to be using it to convince folks to use their
competing product ("iceweasel"), which is trademark infringement. The
disclaimer found in the package description really isn't worth anything under
modern law either.
All that being said, if Debian doesn't want to get rid of the firefox package
(and I can understand why it wouldn't) all it needs to do is get permission
from Mozilla. Of course, that just leads us back to the earlier problem.
-Sean
--
Sean Kellogg
e: skellogg@u.washington.edu
w: http://blog.probonogeek.org/
So, let go
...Jump in
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