Re: firefox -> iceweasel package is probably not legal

[Don Armstrong <don@debian.org>]

On Tue, 05 Dec 2006, 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.

There's a difference between using a trademark in an advertising
sense, and using it in a functional sense. Because calling the
*transition* package firefox conveys a functional advantage and the
actual description of the package is explicit about what it is,
trademark seems not to apply:

       Functionality doctrine therefore would require, to take an
       imaginary example, that even if customers have come to identify
       the special illumination-enhancing shape of a new patented
       light bulb with a particular manufacturer, the manufacturer may
       not use that shape as a trademark, for doing so, after the
       patent had expired, would impede competition--not by protecting
       the reputation of the original bulb maker, but by frustrating
       competitors' legitimate efforts to produce an equivalent
       illumination-enhancing bulb. See, e.g., Kellogg Co., supra, 305
       U.S., at 119-120, 59 S.Ct., at 113-114 (trademark law cannot be
       used to extend monopoly over "pillow" shape of shredded wheat
       biscuit after the patent for that shape had expired). This
       Court consequently has explained that, "[i]n general terms, a
       product feature is functional," and cannot serve as a
       trademark, "if it is essential to the use or purpose of the
       article or if it affects the cost or quality of the article,"
       that is, if exclusive use of the feature would put competitors
       at a significant non-reputation-related disadvantage.
 
From Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995)[1]


Don Armstrong

1: http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/qualite.htm
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