Free Software And Trademarks

Sir,
 
Unfortunately, I went on holiday soon after John Morris' letter on
Trademarks and F/OSS was published in August 18th's LWN, and did not
have a chance to reply immediately. But, as the Mozilla Foundation's
management of the Firefox trademark has been the catalyst for many
recent discussions on the topic, and I am their first point of contact
for trademark issues, I feel I should respond.
 
Before I begin, I should correct the thesis of the opening paragraph,
which seems rather to underly a lot of what follows. The Foundation did
not establish a wholly-owned subsidiary Corporation to "make themselves
compatible with the rest of the corporate world", no matter what ZDNet
may think. We did it chiefly because there are rules in the USA about
the sources of income for a tax-exempt entity which we were not able to
meet with our current mixture of income sources.
 
In my view, the general idea of trademarks - that you can label a
product with a name or icon which represents a level of quality in the
mind of the public - is entirely compatible with the principles of Free
Software. Just as some free software licences require appropriate credit
to be given to authors, so it should also be possible to require that
distinguishing marks be removed (assuming that functionality would not
be affected thereby) if the author thinks that a derivative product does
not reflect well on their original efforts.
 
However, as has been pointed out many times, the way trademark law is
structured makes it a challenge to maintain one's trademark without
inconveniencing, even if just a little, those who wish to use it. This
is unfortunate, but I don't think it's insurmountable if one is careful.
 
Firefox has an almost uniquely strong (among free software projects)
need for a solid trademark, due to a combination of factors:
 
- Firefox is by far the most-used piece of consumer free software on the
planet;
 
- Firefox is extremely popular on Windows, and among people I describe
as those for whom "computing is not their main focus in life";
 
- Firefox's brand is very well known and respected;
 
- Firefox is used for financial transactions.
 
This points together mean that there is a great deal of unscrupulous
interest in our product and brand. Without a strong trademark a
nefarious person could, for example, modify Firefox to send them any
login details for a long list of banks, put up a build and buy Google
Ads saying "Official Firefox Download Site!". As the code is Free, the
only way to prevent such a scenario is to use trademark law - we can't
stop them doing a trojaned build, but we can stop them putting our good
name on it.
 
The interaction of trademarks with free software in such a high profile
way is a new thing. We are still trying to work out how to manage the
Firefox trademark in a way which protects our nearly 100,000,000 users
and potential users from scenarios such as this one, but yet does not
unduly inconvenience people on the same side as us - our developers,
quality Linux distributions, OEMs, etc. I welcome any constructive input
as to how we can better achieve this without losing control of the mark.
 
Gerv