Re: firefox -> iceweasel package is probably not legal
On Tuesday 05 December 2006 16:39, Michael Poole wrote:
> Sean Kellogg writes:
> > 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.
>
> When and in what particulars do you propose this confusion would
> occur? Neither the desktop icon (as the most promiment entry point)
> nor the package (in data or metadata) leave much room for confusion.
> Wikipedia has an entry for a phrase[1] that seems to apply.
When the consumer (a.k.a. debian user) goes to the console and decides s/he
wishes to obtain firefox, from the fine folks at the Mozilla Foundation, they
do what? They run 'apt-get install firefox.' When they do so they are not
given Firefox from the Mozilla Foundation, they are given iceweasel, a Debian
product based on the Firefox code base. While a fine product in its own
right, the Mozilla people do not consider it to be Firefox.
Thus consumer confusion is born. And like I said, the data and metadata don't
matter a hoot. Those are disclaimers and the law doesn't care about them.
Disclaimers only work if the parties agree to them... otherwise they do not
serve to protect the infringer from liability.
Your "point of entry" argument is interesting, but I think incomplete. The
point of "purchase" in the debian system is not the icon. The point of
purchase is the download... apt-get install firefox.
In fact, as an end user it is well within my right to use the firefox logo and
name with iceweasel. It's debian, who has chosen to place a product into
direct competition, who has to watch it's Ps and Qs in this business. Which
suggests to me the icon is about as important as a "point of entry" as
writing the Ford all over my Nissan.
> Comparably, "apt-get install pgp" (PGP trademark owned by Network
> Associates, Inc) is functionally equivalent to "apt-get install
> pgpgpg". There are deprecation-related reasons to get rid of the pgp
> virtual package, but it seems that your argument applies to it as
> well.
I don't know much about NA's policy on PGP. Maybe they don't care... for
that matter, maybe Mozilla doesn't care about the firefox package name. It's
not my place to suggest what those policies are or should be. But Mozilla
has made pretty clear that they don't want people to get iceweasel and think
it's firefox.
> The term for "made up term" you were looking for is fanciful mark.
The word "fancy" kept coming to mind... why I couldn't get to "fanciful" is
beyond me. I knew "fancy mark" was wrong. Thanks.
> However, if you enumerate the features provided by both Iceweasel and
> Mozilla Firefox, I suspect that most consumers who identify anything
> by the word "Firefox" would identify the feature set -- and not the
> particular software packaging -- as Firefox. On that basis, the
> functionality doctrine is apposite.
That's all good and well... but that's not what the trademark law cares
about. The trademark law cares whether the consumer can properly identify
the product from other competing products. I cannot produce a car identical
to a Ford Focus and then say "well, it's a Ford Focus because the feature set
is identical."
-Sean
--
Sean Kellogg
e: skellogg@u.washington.edu
w: http://blog.probonogeek.org/
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