Mozilla Foundation Open Letter Orders Unofficial Mozilla Merchandise Sellers to Stop, Legal Action Hinted
Tuesday March 16th, 2004
mozilla.org staff member Gervase Markham has posted an open letter to the Mozilla newsgroups addressed to those who sell goods bearing the Mozilla name or logos: "The following is an open letter to anyone selling Mozilla-branded merchandise. It's being posted rather than emailed in the spirit of openness, and to ensure everyone who needs to read it can see a copy."
The letter urges those selling products with the Mozilla insignia to stop and contact the Mozilla Foundation for further discussion on how to proceed. Noting that the retailing of Mozilla-branded wares without permission is an infringment of the Foundation's trademark rights, the letter hints that legal action may taken against those who refuse to heed the advice. Read the full article to see the complete letter.
I sure hope this doesn't affect the "Mozilla Coffee", being that part of the procedes go to Mozilla.org directly.
Part of the proceeds? They deserve all of the proceeds!
No, they desirve a percentage of the procedes. But hell, if all the procedes go to them, even better (although I doubt this is the case as with %'s it's a win/win situation)
They don't make the product, they don't market it, they don't incur the overhead of the employees who do these things, and they should get *all* the proceeds? That's just crazy. Of course they deserve some of the money, because their name is being used, but what about rewarding the people actually selling the product? Somehow I doubt there would be anyone willing to sell products with the Mozilla name/logo if Moz. got all the proceeds.
As I understand it, Mozilla Coffee was one of the earliest groups to make an arrangement with the Foundation. This doesn't affect them.
The foundation's lawyers probably told them to do this to protect the foundation's copyrights. If Mozilla Foundation doesn't enforce the exclusivity of their brand then they could lose the rights to the names Mozilla, Firefox, etc. Then anyone could run around saying they're the Mozilla browser company or whatever. So before you decry the guys for 'going draconian', remember they have to protect the interest of the general community. Generally, I'd think that everyone would like to be able to keep the Mozilla brand away from less-then-reputable businesses.
You probably meant trademarks rather than copyrights. They are not the same, and there are different laws governing them.
#5 Good grief.
Tuesday March 16th, 2004 6:46 PM
Isn't the mozfoundation's treatment of trademarks entirely incompatible with the gpl and other opensource licenses? RedHat recognized this and put all of the trademark artwork in separate packages under non-opensource licenses.
In any case, it seems the foundation is searching high and low for ways to erode the public goodwill and trust which took so long to build up.
That's exactly what Mozilla's been doing with "official" branding in builds.
Trademark is an entirely separate issue to copyright.
> Isn't the mozfoundation's treatment of trademarks entirely incompatible with the gpl and other opensource licenses?
Yes, completely. Our trademarks and logos are not available under open source licenses - rather like the way Red Hat handles branding, as you say. The official logos are in a separate place in the CVS tree, and only pulled and built if you set a configure option which says "I have permission".
> In any case, it seems the foundation is searching high and low for ways to erode the public goodwill and trust which took so long to build up.
How is that so? Surely preserving our trademarks, so they are only used to brand stuff which is of decent quality, is a way of preserving public trust? If you know it's logoed Firefox, you know it's approved by the MF and so good, not some random throw-in-every-extension-and-destabilise build put together by Joe Q. Hacker.
Wouldn't it be better to just put [official build] in the titlebar or something like that, in general you can tell if you are getting a good build by where you get it from, if you download it from mozilla.org it's good, if you get it off of kazaa or geocities it's probably not. If you get it from your OS distro (The only place I think you really should get it from, but that's a separate issue) then you should trust it because you trust the distro. The redhat dumped a ton of resources into mozilla [through chris blizzard] and seems to be getting the royal screwjob here. A branded nightly that's buggy would do more damage to reputation than most jow blow builds.
I think this is really a culture clash here between the commercial software world where they just give you binaries and the free software world where thye just give you the source, if you want a binary find one from a reputable source or compile it yourself.
I think you're missing the point. I've followed quite a lot of the public side of the branding discussion and this is a brief summary of what I've learnt:
In order to keep a trademark, one has to defend it. This is a legal requirment certianly in the US, probably also in other countries.
Without a trademark, there is nothing to stop other people making a product called "Mozilla" or "Firefox" (or indeed "XUL"). Therefore, if the Mozilla Foundation chooses to turn a blind eye to trademark infringment, there is nothing they can do if somone produces a different piece of software using the Firefox name. Or produces a different markup language and calls it XUL.
Given the license that the Mozilla code is under, the trademarks provide the only mechanism to distingush between offical and unofficial builds. If the foundation fail to protect these marks, they will have no way to prevent someone from distributing "Mozilla Firefox" with a keylogger so that all your credit card details get transmitted to the distributor. Nor is there any recourse if people start adding any other buggy, unstable code to the products and distributing them as "Mozilla Firefox".
There are other products which have a similar policy wrt trademarks. All Redhat software is Free with the exception of 2 RPMs of graphics which are non-free. Openoffice.org does somthing similar (I'm not quite sure of the details on that one).
It will be possible for distributers to get a license to use the name and logos. I'm sure that Redhat will get such a license. I'm not quiite sure of the licensing conditions so I can't say how hard it will be to get a license. In general it seems that the Foundtation will want to know exactly what changes are being made to the official build before granting a license. This is somewhat more strict than I would like (I would prefer a situatiion where anyone just applying patches which had the necessary level of r and sr to be included in the main tree could use the logo - this would make e.g. security patches easier), but may be legally necessary.
As expected (by me at least), this causes problems for Debian. I hope they can be resolved, although it's worth noting that Debian have distributed buggy (as in, 'with crash bugs not present in the original release) versions of Mozilla in the past.
Source Linux distributions like Gentoo may be screwed when it comes to getting official artwork. However, there is trademark-free artwork being produced by the visual identiity team. Everyone will be allowed to use this without restriction, even if their product is IE spyware which installs a keylogger, leaks memory and causes random crashes.
The siituation with third parties distributing Mozilla-branded merchandise is someone different from the code distribution issue in the sense that there's no obvious reason why third parties should be able to distribute Mozilla merchandise at all, whereas there is a clear need for them to distribute mozilla code. However, both types of trademark enforcment are required.
At present, people distributing Mozilla merchandise are profiting off the Mozilla name without contributing anything back (setting up a CafePress shop has basically no overheads). The only thing that the foundtation gains from this is a little brand exposure. Hopefully the quality of Mozilla merchandise willl improve to the point where people want to buy stuff from the official store (hopefully we'll also get a Mozilla-Europe store or mor generally something other than a North-American store).
Some third parties may be allowed to sell Mozilla-branded merchandise assuming they come to some arrangment with the Foundation. This seems to involve not competing with mozilla-store products and donating an acceptable cut of the revenue to the foundation.
Any rumours that McDonalds Happy Meals will start to come with little red dinos are strictly false.
Gerv's "Open Letter" was very friendly.
#34 Generic logos?
Wednesday March 17th, 2004 4:24 PM
Then what logos get used for builds that don't pull the "official build trademarks" from CVS? Is there a generic name for works derived from Firefox code in the way that "Abiword Personal" is the generic name for works derived from Abiword under the GNU GPL? <http://www.abisource.com/personal.phtml>
AFAIK, the generic artwork hasn't been checked in yet, but is expected sometime in the near future (like within a week). I might be wrong though :)
I thought the generic artwork had been checked in already? (Being, the non-generic logo minus the red firefox - just a blue globe)
... Just checked, the Windows / Mac versions were checked in yesterday by Ben, and XPMs today by dbaron.
In case anyone is wondering, the Mozilla foundation needs to do this to protect their trademark (for US trademarks, if you don't defend them you can't enforce them later on). While it might seem harmless to sell small mugs with the mozilla logo, it may cause problems later on if the Mozilla foundation wants to prevent eg. a porn site using the Firefox graphics as their logo.
What will be interesting is to see how the foundation handles licensing of the logos from now on. If all they want to do is protect the trademark, then giving licenses to the people selling merchandise is sufficient. At the same time, they could use this opportunity to store.mozilla.org the only place in the US to get such merchandise.
It is also worth noting that the Mozilla Foundation can only take legal action in areas where it has registered a trademark. So some non-US people may be able to legally ignore the letter (although morally, they should probably comply and get a license).
mmm firefox porn.
The Mozilla Foundation has every right to enforce their trademarks. But, if they do, I would surely like they expand their store to have some really awesome stuff or at least license the trademarks to say, for example, R.J. Tarpley's Coffee.
Say, does anyone have any clue to what the heck this expensive "collector's item" is: <http://www.cafeshops.com/mozilla.10038541>
$225.00 for the "Sounds of the Firefox" is through the roof!
Ah, the plaintive cry of the buttmonkey!
hmm. is that stuff legit? i like those shirts..
#11 Impractical Lawsuits
Tuesday March 16th, 2004 10:49 PM
I think if they manage to collect the profits any company has made selling Mozilla merchandise, they will probably get about $30 US dollars.
You're missing the point. US Trademark law _requires_ a warning like this and a threat like this to be able to claim that you were protecting your trademark. If you don't behave like this, you lose the trademark.
Now it's a sucky law. But until we get it changed....
#19 Re: Re: Impractical Lawsuits
Wednesday March 17th, 2004 3:05 AM
I understand that, but I think if they actually sue people, that will be absolutely stupid. However, I suppose they will not do that.
#21 Re: Re: Re: Impractical Lawsuits
Wednesday March 17th, 2004 5:25 AM
I doubt it will come to that. Now, if the infringing parties refuse to play nice, Mozilla's certainly well within their rights to seek a legal injunction, but I don't think they'd look for monetary damages, as well.
Reading the full article, it's by far the most friendly letter that's been written in order to "stop infringements of trademarks" that I've ever seen. :-)
#14 Re: Wow...
by sbergman27 <email@example.com>
Wednesday March 17th, 2004 1:12 AM
Yes, it is certainly a refreshing change from the usual "We had to sue their asses off. Trademark law requires it!" line that we usually get. I've never quite understood why asking someone nicely at first would not be considered to be "defending your trademark" adequately.
Glad to see a "cease and desist" letter as friendly as letters should be.
I guess the main reason for this pirate merchandisers is that there's a big demand for Mozilla stuff and people will grab it from where they found it. And I say pirates because they don't do any work at all, at least the CafePress hosted shops: art has been done by someone else and distribution is made by CafePress. All they have to do is upload the image(s) and select merchandise they want to "offer".
I would prefer printing images in a transfer and ironing my own t-shirts, or going to Walgreen's to do the same while Mozilla prepares its store. People has complained in various forums that Cafe Press items are low quality. Higher quality is the main reason (other is building the logistics) why it takes longer for the store to prepare merchandise. Anyway, hurry up, mozsource! Throw as a bone! Or a schedule!
The low quality is only partly the fabric. The iron-on printing process required to make it profitable to do cafepress' low volumes just can not compare to real silk screened printing, mostly because the fixed cost of making the masks for silk screening needs to be recuperated on the shirts sold, and you just can't do that with volumes of less than 100 t-shirts without charging ridiculous prices.
I think there's enough demand for high-quality mozilla shirts, but mozilla.org would need to have the masks made and do the print runs themselves in order to get the prices low enough. And I highly doubt they have the time for something like that right now.
by wvh <firstname.lastname@example.org>
Thursday March 18th, 2004 8:33 AM
My girlfriend makes screened (negatives with UV light) t-shirts. It really ain't that expensive to do, I have many unique shirts that definately did not come out of a 100 t-shirt batch (then again, that's manual work, ofcourse). In fact, considering she hates ironing, it actually is easier than the iron-on method. ;)
I think Mozilla management is exaggerating here. It should not forget it's opensource and goodwill roots. Perhaps this is a cultural issue - I think this is mostly an US practice. It certainly *looks* very unkind to me, no matter what rights you have, and it's something that ever so slightly makes me not want to be associated with Mozilla and would give me a bad impression if I wouldn't know the project better.
I don't think that it's a cultural issue at all. It is primarily a legal issue, which many people have already commented on, so I won't go into that. Aside from the legal aspects, the Mozilla Foundation must also protect it's reputation as a responsible merchant. Allowing unauthorized products based on Mozilla Foundation's trademarks undermines that position because there is no way to ensure the quality of those unauthorized products. Such products, because of their inferior quality and apparent affiliation with the Mozilla Foundation, may cause people to lose respect for the Foundation and it's official products. That is a very real concern whatever your culture.
I think that should be $2.25
sounds like the RIAA. complaining that people are pirating "things" that they cannot get from a legitamite source.
#32 Re: Reply
by remline <email@example.com>
Wednesday March 17th, 2004 1:35 PM
You are way off base there, buddy.
1) Buy the CD? 2) iTunes? 3) Napster 2.0?
If you can't find it anywhere but Kazaa and other lame pirating sources, something is wrong.
Is there any plan for some method (a list on mozilla.org, or even just a logo vendors can display) to allow we the would-be-purchasers to know whether some vendor is officially licensed to be selling stuff? There are vendors with neat stuff out there, but at the same time, I'd prefer to know that some of my purchase does go to Mozilla.
Yeah, that's a good idea. I think a list of licenced vendors on mozilla.org, or something like that, would do nicely.
by wvh <firstname.lastname@example.org>
Wednesday March 17th, 2004 11:58 AM
Are we not overdoing this whole branding thing? I don't feel like having SCO- or Microsoft-like legal letters doing rounds. Can we focus on the code instead of merchandizing, selling, managing, branding, corrupting with corporate lingo and behavior?
Is there anybody really using Mozilla, its logo's or trademarked names to make money?
For trademark protection purposes, it doesn't actually matter whether people make money... as long as they distribute something that's not the actual X and call it X, it's dilution of the trademark; if this is not defended against, the trademark becomes void (by law).
#45 Re: overdoing?
by wvh <email@example.com>
Thursday March 18th, 2004 8:43 AM
And how does this exactly apply to a little t-shirt? The law, the law... Is this the (in)famous US free market system? :)
A t-shirt or a Debian package is not an alternative browser or trademark infringement, IMHO. In fact, if I want to have a Mozilla t-shirt for some weird reason, I'll make it myself, for myself. If the Mozilla foundation does not like this, they can kindly crawl up my ass, where companies like MS and SCO already enjoy the party.
Why would anybody who really *wants* a mozilla t-shirt and knows what it is, buy it elsewhere anyway?
> Is this the (in)famous US free market system? :)
Actually, yes. The system is badly in need of reforming, and this is one example of why.
Unless you are a trademark lawyer (which I am not, by the way), your opinion really doesn't count (as mine does not) in decifing whether this is trademark infringement.
"In fact, if I want to have a Mozilla t-shirt for some weird reason, I'll make it myself, for myself."
AFAIK you can make T-shirts for yourself legally, but you can't sell/distribute them; trademark law is about trade, commerce, selling, ...
I don't think RedHat is an appropriate company to use as an example of how open source GPL software can work.
I think we are applying commercial philosophy to open source GPL style software.
I'm not claiming Mozilla is doing anything incorrect or immoral in it's actions but here are some questions to ponder just to get us thinking.
If people contribute to Mozilla, why can't they use the Mozilla name? They've helped build the brand.
Why can't the Mozilla artwork be GPL'd? The whole point of GPL is that modifications of the code have to be returned if it's distributed.
How can the Mozilla Foundation make a claim that an build is "official"? Under the GPL the community owns the code.
Isn't it official if it comes from mozilla.org? Are there really resources for Mozilla Foundation to QA linux distro builds?
I can understand the point made of "defending the trademark" if someone built a car and called it Mozilla Firefox, but if someone sells a t-shirt with the logo on it and Mozilla Foundation doesn't mind it then how would Mozilla Foundation lose the trademark?
I think if someone sells Mozilla merchandise they should give back to the Foundation. But why do they need the Foundations permission?
Also, is keeping the images from the source against the GPL or against it's spirit? The artwork is binary source that makes up a part of the source code.
> Why can't the Mozilla artwork be GPL'd?
Because then anyone can use it for any purpose, including labelling spyware versions of Firefox, and utterly unrelated software.
> How can the Mozilla Foundation make a claim that an build is "official"?
mozilla.org is the de facto maintainer for Mozilla, and it owns the Mozilla trademark. How more official can you get?
> if someone sells a t-shirt with the logo on it and Mozilla Foundation doesn't mind it then how would Mozilla Foundation lose the trademark?
The Mozilla Foundation has to be seen to be policing the use of its trademark, otherwise it may lose it. This may not be good, but it's the law.
> I think if someone sells Mozilla merchandise they should give back to the Foundation. But why do they need the Foundations permission?
Because they are using our trademarks :-)
> Also, is keeping the images from the source against the GPL or against it's spirit?
Note that Mozilla is currently only under the MPL. Debian, for example, has a similar policy for its official name and images.
> Why can't the Mozilla artwork be GPL'd? The whole point of GPL is that modifications of the code have to be returned if it's distributed.
No, modifcations have to be released under the same license. That's different from being "returned".
> How can the Mozilla Foundation make a claim that an build is "official"? Under the GPL the community owns the code.
No, the copyright owners "own" their own code (in the sense of hold the copyrights to it). They choose to license it in such a way that anyone has permission to modify it. Note also that Mozilla isn't licensed under the GPL, it's licensed under the MPL/LGPL/GPL trilicense. This offers considerably more flexibility in the way the code is used by third parties.
The Mozilla Foundtation can claim a buiild is official in the sense that it either a) built it itself and so knows exactly what code is being built with which compile options or b) A trusted third party (i.e. a licensee) built the code with any modifcations implicitly or explicitly approved by the Mozilla Foundation.
> Isn't it official if it comes from mozilla.org?
Yes, it is. It will also be "official" (in the sense of "with permission to use the trademarks") if it comes from a Mozilla Foundation licensee.
> Are there really resources for Mozilla Foundation to QA linux distro builds?
I don't think the Foundtation are going to directly QA builds from all the licensees. Tthe policy seems to be "we want to know what changes you're gong to make, and we'll decide whether they're acceptable or not). I'm not quite sure how this is going to work in practice.
> I think if someone sells Mozilla merchandise they should give back to the Foundation. But why do they need the Foundations permission?
Because allowing anyone to use the artwork / trademarks dilutes the brand (the name Mozilla is not just assosiated with the Mozilla Foundation, but also with Joe's Mozilla shirts, or whatever). If the Foundation ignores this then, should somone start using the trademark for somthing nasty (Joe's Mozilla Spam Mailer, or whatever) then, should they go to court, they will be told that they have failed to protect their trademark (sincve it is assosiated with so many businesses) and so cannot prevent the unwanted use of the trademark.
The need to protect trademarks seems stupid, but it at least prevents "submarine trademarks" where a company trademarks a term, makes a big effort to get it used in the language and then starts suing people who use it.
Bear in mind that the graphics and trademarks are the *only* items that the Mozilla Foundation actually own (they also own lots of Mozilla coding experience but so do IBM, for example). They took legal advice and were told that many existing Open Source projects would have no legal recourse if someone else starteed trading under their name (I don't have specific examples, but you can imagine the confusion if someone started selling say "Linux 3.0" which had no relation to the original).
> Also, is keeping the images from the source against the GPL or against it's spirit? The artwork is binary source that makes up a part of the source code.
Well I'm not RMS, so I don't really know what he would say but I don't believe it's an ethical problem (although I see pratical difficulties). The idea of Free software is that one has the freedom to modify and redistribute the code so that one is not barred from making improvments to the software that one uses. Protecting the trademarks doesn't impinge upon this freedom, since the artwork doesn't add any functionality to the program. Nor does it place any further burden on subsequent users (if I modify the code and then pass it on, there are no restrictions beyond those imposed by the MPL/LGPL/GPL) - in this sense it is a significantly better solution to the "advertising" clauses that some programs have which place a requirement on all distributers to include attribution to the original authors in the documentation. Essentially the only restriction being imposed is that you don't try to impersonate the Mozilla Foundation. I'm sure if Novell or IBM start releasing branded Open-Source software, people won't have a problem with the idea that their logos are going to be protected by trademark law.
Are official nightlies built with the fox or just with the globe?
MF should protect 'their' trademark, like any other 'normal' company, so they did. Good point, but a bit late.
Anyone that compiles a mozilla Firefox build can replace "official" with "better than the official" after fixing a single bug so what's the point?
As long as that single bugfix doesn't introduce two other bugs... as they tend to do.
I think it is a little anti-open source to specify that you will not allow stores in the areas that the Mozilla Store operates.
Is it a seperate licensee or the Foundation's own creation? The letter was unclear.
I understand the need to support the Foundation, but would you license T-shirt stands (in the real world)? What about an online store that had better margins for Mozilla than your own store?
#51 Re: I support Mozilla.. but
Thursday March 18th, 2004 8:47 PM
What does selling t-shirts have to do with being anti- (or pro-) open source? Everybody still can do the same things with the code they always have. The trademark is just to establish a brand, a mark of quality, which is vital to succeed in overtaking Internet Explorer.