Re: Ongoing Firefox (and Thunderbird) Trademark problems
I am not a lawyer.
I am a consultant trying to understand the world he lives in, and as
such, studied the applicable law a little.
Eric Dorland wrote:
It should just be noted that such a move does have consequences as well.
This is not a no-op move. The no-op move would have been to rename the
So, I don't feel I can accept the agreement offered by the Mozilla
Foundation, because of my objections to it and because I don't feel
empowered to make an agreement like this on behalf of Debian. If
however, the DPL wished to step forward and broker such a deal I would
not oppose (he is our elected representative for the project after
If the DPL does not step forward to make some sort of agreement, what
will I do? Renaming seems to be a very unpopular option. So I believe
my best option is to ignore the trademark policy altogether and have
the Mozilla Foundation tell us when they want us to stop using their
Quite like the GPL, it boils down to whether we are required, by law, to
have the MoFo's approval. If we are, then the policy holds true for us.
If we are not, then not signing an agreement with them is a sane move.
Now I originally said we shouldn't do this, but it does have
certain advantages. First of all, I think we can ignore the trademark
policy because it is only a policy, is not distributed with the
software (although having said that, that might change) and it is my
understanding that in most jurisdictions the trademark holder has to
police use of their trademark anyway.
What it does not protect us from, however, is a lawsuit. I'm not saying
MoFo would sue, but if they would, it would put the Debian project under
complete legal liability. Normally, one can claim "innocent
infringement", which means you are not liable for the infringement done
prior to becoming aware of the problem. As a side note, this holds true
for patents as well. In this case, however, we cannot claim that we did
not know, as this has been discussed on a public forum.
Now the advantage of doing this is foremost to not have to rename
Firefox unless the MoFo ask us to. There is also protects us from
looking like the bad guy in the case of a rename (eg the /. headline
will read "MoFo tells Debian not to use 'Firefox'" rather than "Free
software nuts stop using 'Firefox'").
No, it's quite worse. By ignoring the issue, we are forcing MoFo to
either sue us or lose the trademark. That's the way trademark law works.
Just like we can no longer claim we didn't know these things were
trademarked, they will not be able to claim they didn't know Debian was
using their trademarks without an agreement. This means that if they
don't do something legal to us now, they will never be able to do
anything regarding their trademark to anyone else ever. In effect, not
signing the agreement and keeping the name means that we are forcing
them to sue or lose.
Of course the other advantage is
not having to make an agreement that I think compromises our
Of course the disadvantage would be that by ignoring the issue we're
implicitly agreeing to the MoFo's proposal.
I'm afraid the only way of not taking an active stance on the issue of
whether free software should have registered trademarks is to rename our
version of Firefox. If we do not sign and not rename, we are taking an
anti-trademark stance by forcing MoFo to take legal action against us
(which will hurt them dearly as well), or to drop the Trademark idea. If
we do sign the contract we're implicitly saying that we think that the
MoFo course of action is the right way to go.
To put another way, once MoFo decided to issue a trademark, they have no
choice BUT to ask Debian to sign such an agreement. Debian is too widely
used for MoFo to claim they didn't know that we are infringing (and if
they can't claim that, trademark law says they cannot enforce their
trademark against anyone else), and they likely don't WANT us to stop
using the name "Firefox". Both because they likely really do want the
software to be free, and because that weakens the trademark, not
Two important notes:
1. The above is my understanding of trademark law, and does not include
my opinion as for what we SHOULD do. Not being a Debian Developer (yet),
I don't think my opinion on the matter matter that much. In any case,
this is more down to personal beliefs than actual reasoned discussion.
2. I am not a lawyer, so the above may be a distorted view of the real
state of affairs. The correct thing to do with anything I write on the
matter is to take it to a real lawyer, and ask his/her opinion about it.
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