Mozilla's trademark enforcement experience

Posted Apr 16, 2013 15:06 UTC (Tue) by lgugelmann (guest, #89299)
In reply to: Mozilla's trademark enforcement experience by giraffedata
Parent article: Mozilla's trademark enforcement experience

Consider this take on the ever-popular spam topic of the "Coca-Cola annual contest winner":

You set up a website with a prominent Coca-Cola logo and the text "Welcome to the Coca-Cola something-or-other contest, enter your data to participate in our daily sweepstakes in which you can win free cans of Coca-Cola."

and somewhere in small print: "By participating you also sign up for a 2 year, non-refundable, do-nothing Coca-Cola sweepstakes service, for 4$/month."

The use of the Coca-Cola logo and you claiming some association with the Coca-Cola company (beyond just having Coke as a prize) puts you beyond the pale in terms of trademark law. This is something the Coca-Cola company would probably try to nail you for.

What Mozilla is saying is that these guys did the same with the Firefox trademark, and the judge agreed. In other words they went way beyond just providing a download link labeled "Firefox" and a Firefox-logo next to it.

The part with the subscription is, btw, not what Mozilla is objecting to. That part is what brought the public prosecutor in. There the argument is that you are selling a no-value service in bad faith, i.e. scamming people.

If you had called your website "the Cola-based-soda contest", without using Coca-Cola's logo, and offering as prize a basked with a can of Coca-Cola, one of Pepsi-Cola and some other similar beverages, you would probably be fine. (I'm using a basket of several brands to make it as clear as possible that the Cola in Cola-based-soda refers to the generic drink and not the Cola part of Coca-Cola.)

Mozilla's trademark enforcement experience

Posted Apr 16, 2013 21:37 UTC (Tue) by anselm (subscriber, #2796) [Link] (1 responses)

If you had called your website "the Cola-based-soda contest", without using Coca-Cola's logo, and offering as prize a basked with a can of Coca-Cola, one of Pepsi-Cola and some other similar beverages, you would probably be fine.

The public prosecutor would still be less than enthusiastic about the fact that you were trying to trick people into a no-value subscription contract when they thought they were only taking part in a one-off contest. It turns out that informing your customers about this in 2pt light-grey-on-white type at the very bottom of a long and garish web page does not count as adequate notice in this case – at least here in Germany, where the issue ended up in court.

We now have laws that require subscription sellers to provide confirmation in writing (i.e., a letter on paper clearly stating all the costs involved) and allow people to cancel such contracts without penalty for some time after receiving such a letter, and basically indefinitely if they don't get one at all.

Mozilla's trademark enforcement experience

Posted Apr 16, 2013 22:08 UTC (Tue) by giraffedata (guest, #1954) [Link]

If you had called your website "the Cola-based-soda contest", without using Coca-Cola's logo, and offering as prize a basked with a can of Coca-Cola, one of Pepsi-Cola and some other similar beverages, you would probably be fine.
The public prosecutor would still be less than enthusiastic ...

That's true, but in this thread we're talking about the trademark issues, so "you would probably be fine" means you wouldn't owe Coca Cola Corp. anything.

The public prosecutor would probably be just as concerned if you had Coca Cola Corp's permission to run your scam.

(And your need for that permission is, I maintain, orthogonal to whether you're cheating people).