On Tue, 05 Dec 2006, Jeff Carr wrote:
> I notice that recently you have complied with Mozilla's request to
> not use their trademarks for your browser packages. However, you
> can't also use their trademark to switch users to a competing
> product. ("bait-and-switch") The same trademark issues are why there
> is not a package called openoffice. It must be called
> openoffice.org.
There's a difference between using a trademark in an advertising
sense, and using it in a functional sense. Because calling the
*transition* package firefox conveys a functional advantage and the
actual description of the package is explicit about what it is,
trademark seems not to apply:
Functionality doctrine therefore would require, to take an
imaginary example, that even if customers have come to identify
the special illumination-enhancing shape of a new patented
light bulb with a particular manufacturer, the manufacturer may
not use that shape as a trademark, for doing so, after the
patent had expired, would impede competition--not by protecting
the reputation of the original bulb maker, but by frustrating
competitors' legitimate efforts to produce an equivalent
illumination-enhancing bulb. See, e.g., Kellogg Co., supra, 305
U.S., at 119-120, 59 S.Ct., at 113-114 (trademark law cannot be
used to extend monopoly over "pillow" shape of shredded wheat
biscuit after the patent for that shape had expired). This
Court consequently has explained that, "[i]n general terms, a
product feature is functional," and cannot serve as a
trademark, "if it is essential to the use or purpose of the
article or if it affects the cost or quality of the article,"
that is, if exclusive use of the feature would put competitors
at a significant non-reputation-related disadvantage.
From Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995)[1]
Don Armstrong
1: http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/qualite.htm
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