Firebird Database Project Admin Ann Harrison Interviewed
Monday April 21st, 2003
It's been a long and intense week since mozilla.org 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.
#75 Re: Bah.
Tuesday April 22nd, 2003 5:14 PM
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As to the legal issue: I'm not a lawyer, nor am I interested in digging through legal documents to find precedents, but it seems to me that the Firebird mark is fairly generic, was already in use by a BBS project as well as a ton of businesses not directly involved in software, was not really more available for adoption by you than it is for adoption by Mozilla now, and that Mozilla's use of the mark is unlikely to cause any confusion with your use of the mark.
Here is a bit from Bitlaw.com, for those of us who are fairly new to this:
"In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff."
And the 5 things all courts consider in a 'likelihood of confusion' ruling, again from bitlaw:
1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings); 2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods); 3. the strength of the plaintiff's mark; 4. any evidence of actual confusion by consumers; 5. the intent of the defendant in adopting its mark.
FirebirdSQL has an argument on #1. Mozilla has an obvious advantage on #3-5. #2 is debatable; I would say that FBSQL and FBBrowser are definitely different enough to avoid confusion despite the "marketing channels" similarity.
Your condescending remark about rhetoric is obviously not helpful in any way. Furthermore, instead of making distinctions and issues clearer by exaggerating, your car example obscured distinctions.
MozillaZine IS a private club, in any way relevant to the right to free speech. Nobody at MZ is obligated to give 'free speech' on their forums to FirebirdSQL users. This isn't public land, nobody needs to allow you to stage demonstrations here. (BTW, FirebirdSQL users' crapflooding was not by any means limited to "forums appropriate to the name change" - many of the threads at <http://www.mozillazine.or…forums/viewforum.php?f=26> , for example, were in forums decidedly inappropriate to discussion of the Phoenix-Firebird name change.)
Anonymous posting was disabled to improve the signal to noise ratio at MozillaZine a long time ago, and until recently, that strategy worked. Anyone with a MozillaZine account retains that account, of course, by the good graces of the MZ staff alone; while they've generally been permissive about registering accounts to people who are neither Mozilla developers nor Mozilla users interested in the development process, a mass-registration of such users can only be detrimental to the purpose of the site in the long run.