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Firebird Name Debate Enters a New Stage
An anonymous reader writes "As many readers will know, mozilla.org was asked to change the name for their standalone browser, Phoenix as another browser had the same name. After months of discussion, the new name was announced as Mozilla Firebird. Despite the new name being approved by AOL Legal, supporters of the FirebirdSQL database were quick to object (though the name is also used by many other people). A coincidentally named supporter of FirebirdSQL, IBPhoenix, put up a slightly immature request for their readers to participate in mass posting campaign targetting mozilla.org developers' email accounts, newsgroups and even forums at independent sites such as MozillaZine and Slashdot. FirebirdSQL's official site later reiterated this message. However, IBPhoenix have now declared this shock-and-awe stage of their campaign over, heralding it a success. Their second stage calls for a more focussed email protest at just two of mozilla.org's members: Mitchell Baker (mozilla.org's leader) and Asa Dotzler (announcer of the name change). In addition, they ask their readers to move away from 'derogatory messages' and to show more 'courtesy'. Unsurprisingly, the beleaguered admins of affected sites such as MozillaZine have welcomed this change of direction. This is getting very interesting!"
We at Mozilla believe that having a browser and database group with the same name in the same market is confusing. We ask our users to make their concerns known to IBPhoenix so that they may understand the problem they have created and take appropriate action. You should consider writing to:
(This is where I would put the emails of all the IBPhoneix people if I was not incredibly lazy.)
paintball
phoenix bios has a browser for embedded systems and they own the TM on phoenix.
The problem is not Phoenix bios, it's the Phoenix Technologies _BROWSER_ for embedded systems. Hence they are similar and could be confusing.
The same is not true of the Firebird SQL software. They are in differant spaces and in my opinion are not likely to be confused. The IBPhoenix guy also handled the situation poorly and doesn't merit a response.
According to the Phoenix (now Firebird) project page, they already went through months of legal investigation and deemed Firebird a perfectly usable and un-infringing name. There is no way they will change it now.
Also, considering the Firebird Database is an open source project, I doubt they would be able/willing to bring up a lawsuit for the name anyhow.
Yeah, a very good point. The sourceforge usage statistics for the Firebird project demonstrate this very well.
Opera released a version of their browser - the fark edition or something like that - that, when accessing the MSN site, runs the contents through a translator of sorts and basically screws up the content. This was in responce to Microsoft deliberately making sure that anyone using Opera to access their site wouldn't be able to make much use of it, and for no reason other than the fact that they felt like it.
Ack!
"1 Switch Mozilla's default browser component from the XPFE-based Navigator to the standalone Phoenix browser."
does not mean that phoenix/firebird will stop existing as what it is, stand alone browser.
world was created 5 seconds before this post as it is.
Yes, the copyright _does_ need to be stated to be defensable US Code Chapter 17 Article 401 Subsection (a). While the courts may order an infringer to cease and desist, no damages can be accessed. However as any professional photographer will tell you, the laws aren't as clear cut as you might think.
You are right copyright laws aren't actually under debate, I included them b/c if they care about such infringements, they really need to protect themselves, in case a company with real legal clout (that also happens to be in the database biz) decides to lean on them
Sig Nazi- "No Sig for you, come back 1 year."
It's more complicated than that; the law you reference simply tells how to affix a copyright notice if you choose to.
Prior to the 1976 revision of U.S. copyright law, you would actually lose your copyright to a work if you published it without proper copyright notice being displayed.
After 1976, you automatically obtain copyright on your work as soon as it is fixed in a tangible format. You own the copyright whether you add the copyright notice or not. Including the copyright notice is still a good idea, however, because it makes it easier to establish that someone _knowingly_ violated your copyright; it can affect the amount of damages you receive.
All of this stuff is in the circulars which the U.S. Copyright office makes available on the web.
The browser Phoenix had a legitimate beef, I mean you have two browsers of the same name. That is really confusing.
The browser isn't called Phoenix, that is the name of the company. The browser is part of what's called "FirstBIOS". They are obviously worried people would mistake the name of the company for the name of the application. Sure it's about protecting a company's brand, but it's not because there is another browser called Phoenix.
Phillip.
Property for sale in Nice, France
2. You have no claim to the Trademark or
copyright for EITHER Firebird or Phoenix. I have
browsed several pages of your site, and find no
instances of "(tm)" "trademark" "copyright" or
"(c)" (done with the appropriate circle)
claiming either the Firebird or Phoenix name to
be your own. Those are most definitely required
to defend/protect a copyright/trademark
As someone else has already pointed out, copyright is not germane to protecting a brand name. You can't copyright a word or name; but under some circumstances you can have trademark rights to a name.
You are incorrect that a name can only be protected as a trademark if the (tm) symbol appears. If a name is widely used for a particular brand, the original user of that name has certain trademark rights to that name, even if the name was never registered as a trademark.
This can even be true if the name was not created by the product manufacturer, but is generally used to refer to a particular brand; for example, the Coca-Cola Corporation had trademark rights to the widely-used name "Coke" even before that company started using that name in its own marketing, since the name was widely understood as referring to Coca-Cola's brand of cola soft drink. The important test in any trademark infringement case is whether the use of the name is likely to create confusion and thus allow a user of the name to take advantage of the reputation of another vendor.
Registering a name as a trademark is advantageous because it serves as public notice of your claim of trademark, and prevents a defense of ignorance in a trademark infringement case.
You must not use the (tm) mark if you have not registrered your trademark; doing so can actually statutorily result in the loss of your trademark rights.
All of this information is from a basic text on trademark law which I checked out from the Univerisity of Pennsylvania library a few years ago.
The Firebird project (at sourceforge) was not created by IBP, in fact I created it, it's hard to call it owned by anyone since it's a fairly loose association of people who are working on the code, including some from IBP. From several discussions evolved the usage of FirebirdSQL for some of the web and packaging.
In the last year the nonprofit association FirebirdSQL Foundation was created, (through about 12 founding members) to direct donated and membership funds, and probably a holding place for "firebird community property". Possibly, if there was to be an owner of the FirebirdSQL (or Firebird?) brand that is likely to be where we would like to see it directed (although at this stage IBP would be fine too).
My small experience with "brands" also gave me the understanding that both being in the software business was close enough to "create confusion" in a brand, so I was very supprised to find Moz claiming fb as thier own.
Our lack of prior claim to Firebird or FirebirdSQL (other than through usage) is due to the fact we are your average opensource project, not cashed up , and full of coders not lawyers.
Currently we (all fb people) are still stunned, by Moz's actions to use the firebird name, of which we had no prior knowledge or warning. Our first meeting with big brother opensource, from a smaller project, has not been a pleasant one.
Unfortunately, due to their actions we will obviously need to now spend effort in carefully review our own legal situation, and the effect that Moz firebird(tm) will have on our usage of Firebird and FirebirdSQL. Things that as with most opensource projects, will need to be done by donated work, and volunteer time, we were hoping to skimp on, and rely on general good will. So any advice appreciated :-).
IBPhoenix was named as a twist on the InterBase, word. I'll let Ann fill you in on that when she replies to you.
But a sobering thought to finish on. Our name was just the top one on the list, apparently we only got 5% or 37 votes. So if your name is on this list you were X votes away from getting the same treatment.
Mark
Lest the point be missed here:
Firebird (the database project) was using the name prior to the use of the name by Mozilla. Because of prior use, the Firebird database project has certain legally enforceable trademark rights to the name "Firebird" even if they did not register the trademark and are not using the (tm) mark. For example, if someone else started using the name "Firebird" for a database-related product, they would almost certainly be infringing on the Firebird project's trademark.
The Mozilla project may or may not be infringing on the database project's trademark. The crucial legal question is whether web browsers and database products are sufficiently similar types of products that a reasonable layperson might be confused into thinking that there is a connection between the two.
This is one of those questions where the answer is not clear-cut and where I wouldn't want to bet a lot of money on a court ruling in either direction. Just to give one example of the complexity of the laws when it comes to this kind of interpretation, consider this. When a company with no connection with Kodak-Eastman marketed "Kodak" brand cigarette lighters, they were found to be in violation of Kodak-Eastman's trademark even though the products are of quite different types. In this case, it was because "Kodak" is an invented word; if the name had been "Imperial", the finding would have probably been different. The point is that there are a lot of things which the court has to take into consideration in a case of this type, and the outcome of litigation in this case regarding the name "Firebird" would not be certain.
You all most be kidding.
The month-by-month statistics show that this is a large project, very much active and rather popular. How else would you explain the steady 30,000+ downloads a month for the last 18 months?
This doesn't beat Mozilla's download stats but keep in mind that this is a database, not a browser.
Overall, this respectable OpenSource project should be given much more credit than what it is getting right now.
You have to understand the history of the Firebird DB project in the first place to understand their displeasure.
Firebird DB draws its codebase from Borland's InterBase. Borland was going to kill InterBase and let many of their developers go. Those developers decided to resurrect InterBase as an open source product. There was a lot of talk and Borland was going to release the full source code and rights to them so that this could happen. Then, the talks broke down and InterBase Corporation got screwed. InterBase became a commercial product again with substantially higher licensing fees than before.
So, they (IBC) took what source they DID have rights to and expanded the product and offer it as an OS solution. Because it essentially arose from the ashes, it was named Firebird (and the IBPhoenix support group was born).
Firebird is a very robust and powerful SQL 92 compliant database. It's adoptance by the OS community has been slow because most people remember it only as the commercial InterBase product. But, it's a very powerful, cross platform, database solution. I've used both InterBase and FireBird in my work I'm predominantly a Delphi developer..but do a fair amount of Linux work on the side). InterBase licensing costs are high. FireBird is free.
I suggest that you take a look at what Firebird (the DB) has to offer. I think you'll be pleasantly suprised. And, now that you have an understanding of where the name came from for the project, maybe you'll have a better appreciation of their fight to retain it.
RD
You don't need to register trademarks, you just need to engage in trade using the mark. If the Firebird SQL folks haven't engaged in (interstate) commerce (since they are free software, maybe they haven't...), and haven't registered the mark, then it's possible they don't have any legal claim to the name at all.
However, you do need to defend a trademark (or else it can lose protection by becoming a generic term, like "kleenex"). To do this, they'd need to convince a court that there is likelihood for confusion among relevant consumers (are there any?) -- that a consumer might believe that the Firebird browser and the Firebird SQL engine come from the same place, or are somehow associated. Since they are both pieces of computer software, it's possible that a court would find them confusingly similar. (There is an actual list of types of trade for which you can register a trademark. I think you can get this from the PTO online. It's unlikely that "web browser" and "database" are on there!)
It is extremely uncool of the Phoenix project to have create this mess. They need to back off and reverse their horrendous decision to rename their project to "Firebird". That name is taken. Period. "Our lawyers said it is OK" is just not accepatable.
Frankly, if Phoenix-Firebird does not reverse course, this is going to get very ugly. I would suspect that the fallout will severely damage both projects. The open source community needs to not allow this to happen. Phoenix-Firebird created this mess and ONLY they can get out of it. The open source community needs to pressure them to not continue down the road to conflict and discord.
Disclaimer: I'm a developer actively using Firebird-The-Database-Engine. I use Mozilla-The-Browser.
.. uh... Express your opinions? If you don't like something, don't you try to get a group of like-minded people to go and express their opinions as well? I fail to see how what IBPhoenix did is any different than "mail your congressman" type of things that are here. Note, I haven't looked at the actual messages. If they were flames and immature post, that's a different story, but the simple request on IBPhoenix of "Go here and tell them what you think about Mozilla changing the name to Firebird" doesn't seem out of line at all to me.
OK, after reading throught he morass of crap that people have posted, it seems that people fall into a few different camps.
Camp 1 is "Screw FirebirdSQL, they're a bunch of nutbars." An offshoot of Camp 1 is "Screw FirebirdSQL, they're a bunch of children and don't merit a response."
Camp 2 is "Screw FirebirdSQL, they don't have trademark/copyright/a legal leg to stand on."
Camp 3 is "Screw Mozilla, they're a bunch of nutbars."
And Camp 4 is "Jesus Christ, everyone is a bunch of friggin immature morons."
Personally, I'm of the opinion that, while it doesn't seem there is a legal leg here, the Mozilla team should have done the polite thing, and not even named the new browser Firebird. Someone pointed out "What would happen if MS renamed Powerpoint to Microsoft Mozilla?" Everyone would decry MS as being an evil monopolist corporation.. Wait, that already happens. Anyways, everyone would be flaming Microsoft up one side and down the other. The only difference in this situation is that Microsoft would ignore all of the flame and move on, while the Mozilla people seem not to be.
How is this any different? You have a group of opensource developers (The FirebirdSQL people) who feel that they've been wronged (Legitimately, in my mind. And yes I realize it might be legal, that doesn't mean it's right).
I looked at the "slightly immature request" on the ibphoenix website, and you know what it amounted to? It is almost exactly what anyone around here posts when you say "Mail your congressman!" My God, no!!! Did you realize that you are being "slightly immature" when you "participate in mass posting campaigns" to your congressman? Correct me if I'm wrong, but isn't a forum to
Another point is that Sourceforge already has a project named Firebird (The aforementioned FirebirdSQL). Curiously, Mozilla seems to appear on Sourceforge as well. Don't you think the Mozilla people might want to avoid problems on Sourceforge, if nowhere else? Generic names aside, Firebird is a registered project, and has been.
And, what will happen if (when?) AOL Legal decides to get a bug up its ass and sue FirebirdSQL for some name infringement? Will we say then "Tough, FirebirdSQL, you shouldn't have chosen a generic name" while forgetting that they had that name long before Mozilla Firebird?
This situation is making me sick. Mozilla has acted like a bunch of children, with their only defense being "Well, it's legal" while forgetting the question "Is it right?" No, it isn't right, and I think the Mozilla folks should be changing the name from Firebird to something that is at least unique (and non confusing, so we don't get Mozilla FyreByrd) on Sourceforge, if nowhere else.
Sig Nazi- "No Sig for you, come back 1 year."