Official Firefox binaries non-free

[Alex Hudson]

On Tue, 2005-04-05 at 17:38 +0100, MJ Ray wrote:
> Alex Hudson wrote:
> > Where on the debian-legal is an accusation that debian are being
> > persecuted? Are they - in your opinion - being persecuted?
> 
> I've pointed towards where I think it is. It's alluded to in
> http://lists.debian.org/debian-legal/2005/02/msg00004.html
> but maybe I dreamt it or was drunk when reading the original.

Hmm, I thought Gerv had said that Debian had approach MoFo, not the
other way around. I haven't read the thread in full, though, so in
actuality I'm mostly clueless as to how the discussion started.

> I think the complaints that debian doesn't act like a company
> are needless. That shouldn't have been a surprise.

I agree. On the other hand, though, it's difficult for outsiders to
figure out how debian does act though - I'm not sure debian developers
always recognise that. 

> > I don't know about trademarks, but that's not the case with trade marks.
> > Functionality is irrelevant.
> 
> If the trademark is used in the package description, that's a
> problem. However, there are other ways than the descriptions
> to make "apt-get install firefox" install notFirefox. I doubt
> that either those or /etc/alternatives/firefox would infringe
> the trademark, being not descriptions of a web browser.

That trade mark (FIREFOX) isn't a trade mark on a web browser, so I
don't see how your point stands - I think you're confused with tort law
on passing-off, which is different. You still seem to be talking about
the US situation, too.

   "There may be a likelihood of confusion within the meaning of Article
4(1)(b) of Directive 89/104 even where the public perception is that the
                 goods or services have different places of production."
                (C-39/97, "Canon"; 1995s Puma is also worth looking at).

As an example of the rights trade mark owners enjoy, General Motors was
able to take out an injunction against Yplon/McBride for selling
detergents, even though GM's "CHEVY" mark was only registered for motor
cars. Against that standard, I think installing !firefox when the user
asks for firefox is likely to look like confusion - it's like getting a
box with "Dyson" on the outside but containing a hoover. But hey, it's
better than the Benelux "mere association" test, huh? :)

This is probably irrelevant discussion to the topic at hand, however.

> > [...] They cannot drop the name either, if we're being sensible.
> 
> They can abandon the trademark effort, if they're being sensible.

As I already noted; no, they can't - at least, not in the UK - as far as
firefox is concerned. They are licencees.

> There are more important things for volunteers to work on than
> attacking other free software projects with over-zealous red
> tape. By not enforcing their trademarks as harshly previously,
> having no working trademark-free builds of their software and
> now trying such a hard line, I feel the Mozilla Foundation (MF)
> could be pretty close to a "submarine trademark" effect, happy
> to let distributors think that they are free software, then "you
> will respec' ma' authorita'" once popular.

The alternative is that they're being forced to take this much more
seriously, and spend much more time on this problem. 

The only way for them to retreat from this situation would be to choose
a name different to 'firefox' themselves. They've already twice had to
do that and still haven't solved the problem they were trying to solve;
I think that shows just how hard a problem it is :( 

I'm not attempting to defend their position; but I think much of their
behaviour is defensible and we should be trying to work with them to
improve their position (if the alternative is to try to get people to
boycott them). I think people get the impression Mozilla is a much
bigger project than it actually is.

Cheers,

Alex.