[SlugLUG] More Iceweasel

[Rick Moen]

Quoting Sean Kellogg (skellogg at gmail.com):

> The law is rarely that clear cut.

The law in this matter has been clarified by many decades of caselaw.

> The issue is one of "likely customer confusion," and much harder to
> apply than you might think.

Not really -- although your typical computerist has a difficult time
grappling with the fact that the law isn't a Turing Machine, and clever
would-be procedural hacks tend to run into judges saying "Nice try, but
no."

> 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.  

Says you.  Per the aforementioned decades of caselaw, judges will tend
to be very strongly swayed by any measures the commercial competitor
takes to prevent confusing effect in his/her use of an established mark.
The judge will look in places where the mark is prominently displayed,
and see if the effect can be plausibly claimed to be confusing.  And
where would that be, for a desktop application?  The splash screen, the
documentation, and the manpages.

Don't forget, as well, that the plaintiff must also show competing
commercial use of the mark, usage _in commerce by the defendant_.
Without actual usage _in commerce by the defendent_ (as opposed to by
others), there can be no trademark infringement.  By the fundamental
nature of trademark law.

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

Read some trademark caselaw.  Unless you're using some very eccentric
sense of the term "bilateral", this is mistaken.

> I think the major disagreement between our position is what
> constitutes "customer confusion,"

Again, read the Lanham Act, and read some trademark caselaw.  For the
latter purpose, it might be sufficient for you to read some of the
analyses at chillingeffects.org .

> But consider the following:  when a mark becomes sufficiently famous
> it becomes eligible for dilution protection.

As you perhaps are aware, that works so far if your last name is Coca
Cola, and a literal handful of others -- and again merely expands the
scope of your trademark outside your trade or industry.  A holding of
dilution still requires use of the covered mark in commerce by the
defendant.

Oddly enough, my specialty in business law classes was this subject,
too.  (I am not an attorney, and am not giving anyone here legal
advice.  If you find yourself in a trademark conflict, please consult a
qualified attorney.)