Re: firefox -> iceweasel package is probably not legal
On Wednesday 06 December 2006 14:08, Michael Poole wrote:
> Alleged possibilities of confusion abounds. There is quite a
> difference between that and actual likelihood of confusion,
> particularly no one has cited any holdings that appear to be on point.
Holding? In a trademarks case? You're kidding, right? Very, VERY few
trademark cases ever make it to appeal. It's simply not worth it. Trademark
law is not found in holdings, it is found in the legal community that
surrounds the protection of marks, it is found in the PTO (US or otherwise),
and in the treaties of trademark law. This isn't anything to cite to because
most of this is handled between reasonable people, represented by lawyers,
who come to reasonable agreements. (I would say more about d-l's obsession
with legal citation, but it would be horribly OT.)
> >> As it is not simply a question of owning and controlling
> >> rights (for a limited period), it is incorrect to continually treat
> >> trademark law like those others in hope that you will convince us
> >> otherwise.
> >
> > That strikes me as uncalled for.
> >
> > Trademark law is totally different than copyright or patent law. I don't
> > seem to recall saying or implying otherwise.
>
> A few messages back, you said that "trademark law is an ongoing
> discussion between two parties". This excludes the consumer from
> consideration, which is in appropriate for copyright and patent law
> but not trademark law.
That's right, consumers are not *participants* in the discussion. They are
certainly relevant to the discussion, but they don't get a vote. The
objective "confused consumer" is a legal construct used by either side to
advance their arguments. The discussion I am referencing is between the
holder of the mark and the competitor. I don't see how this is different
from other forms of IP. Now, antitrust law is quit different... antitrust
law cases are often brought by competitors, but the law is designed to
protect consumers. Trademark law, on the other hand, is not designed to
protect consumers... it is designed to protect the mark holder and the legal
concept of "fair competition."
> > But I, and others on this list, have given numerous reasons for why the
> > package firefox could be seen as an infringement of the Firefox mark...
> > and the primary response back has been "it'll be hard to get debian users
> > to learn about iceweasel if we don't push it on those asking for firefox."
>
> Not at all. If there is no transition package, the user's system will
> be left in a non-functioning state. The old "firefox" package will
> depend on old libraries, and these will at some point (possibly now)
> conflict with the new library packages needed by the rest of the
> system.
That doesn't strike me as true. A firefox package could be made that is empty
and has no dependencies. Firefox would simply disappear off of a user's
systems. Old libraries would stay, sure... but that happanes all the time
with package upgrades (thank god for deborpahn). And like I said earlier,
trademark law doesn't care about the difficulties imposed by Debians
technical infrastructure.
> > Well, excuse me, but isn't that the whole point?! Isn't that why Mozilla
> > gave Debian the boot... they don't want people using the Debianized
> > Firefox code and thinking it is, in fact, Firefox?! By packing iceweasel
> > as firefox Debian is seeking to have its cake and eat it too.
>
> You are making quite an unwarranted and unexplained jump here. The
> entire point of the current "firefox" package is that "iceweasel" is a
> distinct package. The executable now distributed by Debian presents
> itself as Iceweasel when you run it. Debian is not "packing iceweasel
> as firefox".
The firefox package is not distinct from the iceweasel package in the eyes of
the consumer. I run the one command 'apt-get install firefox', and then
execute '/usr/bin/firefox' and am shown a browser that looks and acts a lot
like Firefox. But even though, as the user, I believe I am getting and
running firefox, it is not until the very end that I finally realized I've
been duped.
But here's the killer, and the reason why I am confident in my argument that
consumers would be confused... if users would not be confused by the abrupt
disappearance of firefox that my proposed "empty firefox" package would
bring, than the folks on this list arguing on behalf of the transitional
package wouldn't really care. But the fact that the Debian Iceweasel people
made the transitional package, the fact that they made the symlink, the fact
that the whole system is designed to quietly replace firefox with iceweasel
screams out "we are worried you will be confused so we are taking care of it
for you."
If there wasn't a concern about confusion we wouldn't even be having this
conversation.
-Sean
--
Sean Kellogg
e: skellogg@u.washington.edu
w: http://blog.probonogeek.org/
So, let go
...Jump in
...Oh well, what you waiting for?
...it's all right
...'Cause there's beauty in the breakdown
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