[SlugLUG] More Iceweasel

[Sean Kellogg]

On Friday 27 October 2006 09:30, Rick Moen wrote:
> Actually, all they'd have to do to be completely immune from any
> trademark-infringement tort action is put this on the splash page:
> "This software is a modified version of Mozilla Firefox[R], and as such
> is not produced or endorsed by Mozilla, Inc.  Firefox[R] is a registered
> trademark of Mozilla. Inc."
>
> In other words, the essence of a trademark infringement action is a
> credible claim (sufficient to convince a judge) that a commercial
> competitor is using your established mark (distinctive brand name, trade
> dress, distinctive stylings, etc.) on competing goods or services in
> such a way as to probably confuse your least perceptive customers into
> thinking the competing goods or services are yours, or endorsed by you.
> Therefore, all your commercial competitor need to is put a prominent
> notice on his/her competing offering saying "This isn't Sean's offering,
> and Sean doesn't endorse it."

The law is rarely that clear cut.  The issue is one of "likely customer 
confusion," and much harder to apply than you might think.  Consider, for 
example, that as a consumer of Debian packages I decide I'm interested in 
getting Firefox.  So I "apt-get install firefox," but wait, it's NOT 
firefox...  this is some unauthorized debian derivative.  Am I confused?  
Does a splashscreen after-the-fact change that confusion?  Not in the eyes of 
the law.  By and large, disclaimers only work as a means for two companies to 
resolve disputes outside of court...  it is rarely used by courts because 
they are not recognized as being a very effective way of avoiding confusion.

In other words, disclaimers are not unilateral solutions...  only bilateral.

> > I'm about as big a copyleftist as you'll find, and even I don't think
> > this is an abuse by Mozilla of trademark law.  They have a product and
> > a brand associated with that product.  They don't wish others to have
> > a different product (i.e. Firefox + non-approved Debian patches)
> > associated with the same brand.
>
> Again, you've become convinced that trademark infringement law entitles
> them to specify who may use that branding.  It does not.  It merely says
> your commercial competitors may not use the branding in such fashion as
> is likely to confuse your customers into thinking the competitor's goods
> or services are yours rather than his/hers, or are commercially endorsed
> by you.

I think the major disagreement between our position is what 
constitutes "customer confusion," and that's okay because it's probably the 
biggest issue of debate in the trademark world.  But consider the following:  
when a mark becomes sufficiently famous it becomes eligible for dilution 
protection.  Which means that a court can order the use of a term for goods 
beyond those uses which cause confusion within the specified product 
category.  This isn't really spelled out in the Lanham act, nor is it clear 
what is sufficiently "famous"...  but it does demonstrate that the reach of 
trademark law is more expansive than you are representing.

> But don't take my word for it:  Read the Lanham Act, which is the
> governing Federal statute.  (There is also state trademark, governed by
> state statutes and common law.)

Interestingly enough, I have read the Lanham Act...  and the Supreme Court 
cases applying...  and the major Appeals Court cases...  and the major state 
cases regarding common law.  It's almost like I went to law school and 
specialized in intellectual property :)

-Sean

-- 
Sean Kellogg
c: 831.818.6940    e: skellogg at gmail.com
w: http://blog.probonogeek.org/

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