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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!"
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.
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 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!)
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