Full Article Attached Firebird Database Project Admin Ann Harrison Interviewed

Monday April 21st, 2003

It's been a long and intense week since announced that the Phoenix browser has been renamed Firebird, to the dismay of much of the Firebird database community. In this interview with MozillaZine, Ann Harrison, an administrator of the Firebird database project and a partner in IBPhoenix, gives her thoughts on the dispute.

#103 A Perspective from a Sideliner

by JStarkey <>

Wednesday April 23rd, 2003 10:37 AM

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I am not a member of the Firebird project, but I am the original founder, architect, and implementer of Interbase, the precursor to Firebird. I am also Ann Harrisonís husband. These are my opinions and may not reflect the view of the Firebird project, the Firebird Foundation, IBPhoenix, Inc., or my wife.

Trademark law is based on common law, state and federal statutes, and international treaty. The latter defines a set of 45 classes that determine scope of trade and service marks. Firebird, Mozilla, disk drives, and probably the power supply all fall under Class 9 (Electrical and scientific apparatus). A mark has the scope of its class, unless explicitly restricted as part of its registered mark. An unregistered mark, like Firebird, has the full scope of its class. I donít know what sophistry AOLís legal department used when deciding that a mark used on a browser doesnít conflict with one used on a database product. Both are clearly under Class 9. The same logic suggests that anyone can market a golf cart under the name ďMercedes BenzĒ because no dufus could confuse a golf cart with an automobile. (One may note that AOLís legal advice has proven problematic to more than one AOL corporate officer.)

Firebird has developer presence in at least half the states and a like number of countries, so call it 50 jurisdictions. Any of them would be in a position to seek legal protection for a valid mark. In most jurisdictions the court would note that Firebird (database) had been using the mark for three years, Firebird (browser) is in the same trademark class, and is therefore infringing on a valid mark. This is sometimes called a slam dunk.

If Microsoft were infringing Firebirdís trademark, would I advise the Firebird organization to protect their rights in court? Absolutely, without hesitation. If AOL were infringing Firebirdís mark, would I advise the Firebird organization to protect their rights in count? Absolutely, without hesitation. If AOLís open source proxy/agent were infringing Firebirdís mark, would I advise the Firebird organization to protect their rights in court? Yes, but only after trying to persuade otherwise.

Although AOLís legal department apparently made the call, is AOL on the hook? Unless AOL uses the mark, no. Is on the hook? Probably moot, as doesnít have a commercial presence in most of the 50 jurisdictions. Are the Linux commercial distributions at risk? If they ship any material containing an infringing mark in any of the Firebird jurisdictions, they are most definitely at risk of a cease and desist order halting their business in that jurisdiction as well as money damages.

The real victims will be the Red Hat and SuSE and other Linux distributions. They will have to chose between dropping the Mozilla browser, facing legal actions in 50 jurisdictions that they mostly lose, or altering the browser distribution to remove all instances of the offending mark from the product and documentation. Will AOL be willing to indemnify the commercial Linux distributions? Is able to indemnify them? If the goal of to reach the widest possible distribution of its browser, does it really make sense to alienate high volume distributors?

Nobody wants a legal brawl from which there would be no winners except the lawyers. But Mozilla should not expect Firebird to accept encroachment on a legitimate, valid mark based on reports of an opinion by AOLís unseen and unheard legal department.