Examining Trademark Overreach

Authors Jason Self

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jxself.org

Examining Trademark Overreach Home

Mon, 14 Aug 2023 Linux-libre
In a prior post, I discussed Mozilla's trademark policy and its implications for free
software. Today, I'm revisiting this subject from a different perspective. My focus is on GitWeb
a particular segment of Mozilla's Distribution Policy, which says: "When distributing,
you must distribute the most recent version of Firefox and other Mozilla software." How To
Mozilla's trademark policy refers to this as an "additional guideline", and the mandate
carries significant implications for software freedom. Articles
The Free Software Definition outlines four fundamental freedoms that users should
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possess:

• Freedom 0: The freedom to run the program for any purpose. About Me
• Freedom 1: The freedom to study how the program works, and change it so it
does your computing as you wish. Contact Me
• Freedom 2: The freedom to redistribute copies so you can help others.
• Freedom 3: The freedom to distribute copies of your modified versions to GPL enforced
others.

Mozilla's policy, however, conditions the distribution of exact copies on their being the If you appreciate any of the things I
latest version. That means the permission ceases when a newer version is released, am doing you can make a donation.
regardless of whether someone knows its existence. This abrupt termination of the
license, solely because a more recent version exists, seems to contradict Freedom
#2: the freedom to redistribute exact copies.

Indeed, the Free Software Definition asserts that "if the software developer can revoke
the license, or retroactively impose restrictions on its terms, without your doing
anything wrong to give cause, the software is not free."

Mozilla demanding people to stop distributing older versions for no reason other than
Mozilla has released a newer version seems to conflict with the freedoms the FSF
insists are essential for a program to be considered free.

I don't mean to suggest that a trademark must be free, but let's consider it in the
context of Freedom #2, where you're creating an exact copy, akin to the command cp
foo bar, where bar might be on an external drive owned by a friend.

Making an exact copy with Freedom #2 becomes impossible if the trademark's rules
require altering the program before sharing it. In this case, do you still have Freedom
#2 if only modified versions can be shared? The same question arises if the rules only
let you make copies at no charge or for a limited time until a newer version comes out,
all of which are part of Mozilla's policy.

There are numerous reasons why people want to distribute older versions. Perhaps
they have older hardware or operating systems that can't support the latest version.
They may use add-ons incompatible with a newer version. Or they might prefer the
user interface or features of older versions. Regardless of the reasons for wanting to
distribute an older version, Mozilla's policy prohibits this.

You could contact Mozilla to explain your situation and request permission to continue
distributing the old version, hoping they agree. However, this contradicts another
aspect of the Free Software Definition, which states that "being free to do these things
means (among other things) that you do not have to ask ... for permission to do so."

Consider the example of cars, which often bear the trademarked logos of their
manufacturers, like the hood ornament on a Mercedes-Benz. Imagine if a car
manufacturer tried to use trademark to say you're no longer "allowed" to sell your car -
only give it away at no cost - and that you can't even do that if a newer model exists.

The idea seems absurd - you should be able to do what you want with a car you own,
as long as you're not causing confusion over the source and making clear if you've
made changes and that it's not exactly what came from the car manufacturer. Still, it is
what Mozilla is trying to do.

Trademarks help people identify specific goods or services originating from a
particular source, and they don't inherently conflict with software freedom. The issue
arises when conditions exceeding what trademark law might cover are added, such as
dictating how long someone can make copies and at what price.

This seems like it could be an example of trademark overreach, with Mozilla stretching
trademark's intended purpose of identifying a source into areas where it doesn't
belong. Mozilla had previously deemed that version good enough to bear their
trademark and, as long as someone isn't misrepresenting the source and confusing
others, someone's ability to distribute exact copies of old versions with a truthful
statement like "this is Firefox, as published by Mozilla" should not amount to
trademark infringement.

Is this legally enforceable? Can Mozilla add any conditions and do anything they want
with impunity? Or does Mozilla's policy lack grounds for that restriction to be
enforceable? That would require consulting with a trademark lawyer and maybe we'd
not really know even then. Perhaps only a court case would tell us for sure.

The USPTO has said: "Mark owners may, however, sometimes be too zealous and
end up overreaching. Sometimes they may have an over-inflated view of the strength
of the mark and thus the scope of their rights..." and that they may "mistakenly believe
that to preserve the strength of their mark they must object to every third-party use ...
no matter whether such uses may be fair uses or otherwise non-infringing."

The USPTO has also described a "trademark bully" as a trademark owner that uses
its trademark rights to harass and intimidate another business beyond what the law
might be reasonably interpreted to allow.

Regardless of whether it's legally enforceable, Mozilla's policy could have a chilling
effect by scaring people into giving up their freedom, especially if they don't know their
rights or don't want to get into a legal argument, even if they might win. Simply put, it's
not right for Mozilla to try to stop people from making copies.