[SlugLUG] More Iceweasel

[Matt Thrailkill]

Ubuntu founder Mark Shuttleworth posted on his blog re: Iceweasel:
http://www.markshuttleworth.com/archives/79

On Fri, 2006-10-27 at 09:49 -0700, Sean Kellogg wrote:
> 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
>