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Re: firefox -> iceweasel package is probably not legal

On Wed, 06 Dec 2006, Sean Kellogg wrote:
> Trademark law does not care about Debian's technical limitations.

It does only insofar as we are using the trademark in the context of a
technical construct.

> The functionality doctrine is about real world functional
> limitations imposed on tradedress.

That's precisely what is at issue here; you're attempting to argue
that there is no real world functional limitation imposed by calling
the package something other than firefox, and that is quite clearly
not the case. The transition package can be called _nothing else_ and
still function in the same manner.

> As this is neither tradedress nor a real world functional
> limitation, it is incorrect to continually invoke this doctrine in
> hope that you will convince us otherwise.

The fact there is no other way to allow for an automated upgrade
process obviates this entire line of argument.

Your argument is akin to allowing someone to trademark a specific
shape of a light bulb which coveys a functional advantage due to the
interaction of the lightbulb and lamp, and then requiring them to
redesign the lamp because the design of the lamp brought about a
contrived situtation where the bulb design was favorable.

> Same goes for Debian Policy. It doesn't limited libability, it just
> means the policy authorizes the violation of other's trademarks.

The invocation of policy is purely to explain why the package must
Depends: and not Recommends: iceweasel; I can conceive of no
convincing theory that explains why trademark law would treat a
Depends: and Recommends: differently anyway.

That there may be a possiblity for someone to bring action under such
a theory and possibly prevail is admited; but baring any further
action by the Mozilla Foundation I see no reason why we should
eviscerate the upgrade functionality at this point in time.

That said, after the release of etch, there's no reason to keep the
transition package around; I assume that the maintainers were planing
on removing it after that point.

Don Armstrong

LEADERSHIP -- A form of self-preservation exhibited by people with
autodestructive imaginations in order to ensure that when it comes to
the crunch it'll be someone else's bones which go crack and not their
 -- The HipCrime Vocab by Chad C. Mulligan 
    (John Brunner _Stand On Zanzibar_ p256-7)

http://www.donarmstrong.com              http://rzlab.ucr.edu

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