1 October 2010Trademarks

Opening up: Mozilla talks trademarks

In January 1998, Netscape Communications, an early developer of software for the Internet, released the source code of its web browser under a public licence.

It was hoped that a collaborative development project could enhance Netscape’s next browser beyond the capabilities of its rivals. By creating a community that could contribute to and aid in the development of its next browser, Netscape would overcome restrictive resource issues. Netscape called this the Mozilla project.

The browser war of the 1990s involved software developers Microsoft and Netscape leading the race for a dominant share of the web browser market. They continuously offered feature-rich updates to their browsers. Microsoft, the eventual victor, had the advantage of being able to distribute Internet Explorer with the Windows operating system.

Microsoft’s development team was also larger than Netscape’s and the other, smaller, lesser-funded software companies active in the market. Netscape was taken over by AOL at end of 1998 and was slowly disbanded. The Netscape domain is still in use as an information portal, and old versions of Netscape browsers are still available to download, but they are no longer updated or supported by AOL.

The company did not substantially invest in Netscape browsers. Instead, the Mozilla Foundation was established in 2003 to develop open-source alternatives to proprietary software, extending the original mission from the development of a single browser.

AOL helped to establish the Mozilla Foundation by contributing financially and transferring all intellectual property rights relating to Netscape’s original project to the Mozilla Foundation. Mozilla relies heavily on its community of developers who helped to produce the Firefox browser, which today has the second-largest share of the web browser market and has been translated into more than 70 languages.

Harvey Anderson, vice president of business affairs and general counsel at Mozilla Corporation, manages the legal affairs of Mozilla’s mission. It highlights that the valuation of intellectual property can be a subjective exercise.

He says: “We measure the value of Mozilla’s intellectual capital in terms of our influence and impact rather than by traditional metrics. It reflects the contributions of tens of thousands of people around the world who share a common vision of an open web that fosters innovation and choice for users.

"As a mission-based, publicinterest organisation, its value is best measured by the influence on the character of the web ecosystem and the experience of individual users as they use the Internet to conduct their affairs in a digital world.”

Mozilla Corporation, a wholly owned and taxable subsidiary of the Foundation, develops, publicises and distributes Mozilla products on behalf of the Foundation, which is a not-for-profit organisation. Contributions are made to the group as a whole through the Mozilla Corporation.

The Mozilla Foundation and its subsidiaries reported revenues of $79 million in 2008. The majority of this revenue came from a partnership with Google—set to expire in 2011—that, amongst other things, allows the search engine to feature as the default on the Firefox browser.

Ensuring the quality of Mozilla’s software is paramount. An individual’s experience of using the software can be voiced through the collaborative community dedicated to developing the software. Mozilla develops its software in the open so its brand must represent the versions of the web browser software that it releases and approves, while ensuring that others can modify, compile and release their own browsers from the same code base.

Consumers, according to Anderson, believe a brand represents a set of values and functions essential to distinguishing the source of a product. He says: “In the open-source world, whether the brands are formal trademarks or merely source identifiers, they serve a vital role in differentiating products and facilitating user trust.”

Trusting an open-source brand is not about the consumer’s choice between the poorer or even superior modified alternatives on offer. It is about what is done to ensure the branded products keep their own identity. In the article, Anderson said: “The legal test is not whether the quality is high or low—it is whether the trademark owner exercises control to ensure that quality is consistent.”

“In the open-source world, whether the brands are formal trademarks or merely source identifiers, they serve a vital role in differentiating products and facilitating user trust.”

Maintaining the Mozilla brand in an open-source environment is essential to forming a trustful relationship between company and consumer. A trademark owner should exercise the opportunity to control the quality of a freely available product, according to an article Anderson co-wrote called Passport without a Visa: Open Source Software Licensing and Trademarks, published by the International Free and Open Source Software Law Review in December 2009.

Trademark policy at Mozilla encourages brand engagement. Mozilla has formed a mutually beneficial relationship with its users, allowing its software to be changed beyond its control while also requiring its trademarks to be respected. This is to ensure a continuing and distinct brand that remains intact for the benefit of the unchanged software bearing its name.

Anderson says: “We encourage the lawful and licensed use, but not abuse, of our trademarks in connection with the unmodified versions of the products that we make available. We want users to engage the brand that they’ve helped create. To facilitate this, we’ve made available extensive guidelines on our website that describe how to use the mark properly and under what conditions.”

Significant functional changes may be made to Mozilla’s products, according to the guidelines, as long as the modified version is not redistributed under any Mozilla trademark without prior written permission. Inappropriate examples are also provided to guide users away from accidental trademark abuse.

The words “based on Mozilla Firefox” cannot accompany a modified version of the Firefox web browser; instead, the guidelines recommend a “based on Mozilla technology” logo for the redistribution of modified software.

But as any company will say, sophisticated strategies on their own never completely remove the threat of infringement. Mozilla’s trademarks are no different.

Anderson says: “Websites sell the Mozilla Firefox browser, using the Mozilla trademarks to promote other products and services. Elaborate and extensive fraud schemes are used to dupe users into credit card subscription traps, or malware is embedded in downloaded software that is passed off as the Mozilla Firefox browser.

"This is not uncommon practice and affects the majority of legitimate companies operating over on the web. Unlike the more benign case of a fan misusing the marks, these activities are intentionally deceptive, they can harm users and they compromise the meaning of the Mozilla brands.”

Mozilla tries to differentiate between intentional and accidental infringement. The consequences of the infringement are a good indicator of this, allowing for a measured remedy to be administered in response. Direct communication with the infringer can provide an amicable resolution, says Anderson. Domain name dispute procedures and cease and desist letters have their place, but sometimes a response must go further.

“The most serious cases may require injunctive relief, [particularly] those that intentionally trade off the brand and use deceptive practices to defraud users," he adds.

The technology that makes up Mozilla’s products is protected in a way that allows it to develop without the constraints of traditional ownership. Microsoft’s Internet Explorer may be freely available, but its use is governed by a strict licence that prohibits the modification or distribution of the software.

This, Mozilla argues, is restrictive to the advancement of the technology when compared with the ‘sharing’ principle that governs open-source software.

Mozilla licenses its software under the Mozilla Public License. It grants a global, royalty-free, non-exclusive licence to both users and thirdparty developers. Anderson says: “We base all our decisions on the user. This means there is no commercial objective that compromises the primacy of the user. We use an open and transparent development model based on participation that is different from any of the browser competitors who develop in a closed environment.”

Contributors have a way of adding to something bigger than themselves, says Anderson, allowing their work to touch hundreds of millions of users. A relationship like this is traditionally underwritten by proprietary rights, but Mozilla leans on trust.

Anderson says: “My view is that those that want to act in ways that are unlawful will find a way, regardless of the rules or relevant legal framework. We optimise for, and operate upon, the dominant assumption of compliance, rather than the exception.”

Third-party developers are not left entirely to their own devices. The distributed authority model, as Anderson calls it, involves a development and review process that is rigorously disciplined. This can help to keep Mozilla software developments as innovative as possible.

Anderson says: “A good example are super reviewers, who are volunteers who have code review authority based on trust and respect earned from their actions over time. As long as the aims and activities remain relevant, and people get value from their efforts, we have great faith that this model will continue to unleash the innovative capacity of developers and contributors around the world.”

Mozilla’s products are not entirely free. They cost the time of the many people who develop the software. Collaboration is possible because of charitable contributions and advocates of opensource software, but it also relies on partnerships like Mozilla’s agreement with Google. Mozilla makes great efforts to put the user first and not let commercial partnerships compromise its short and long-term aims.

To make up for these costs, Mozilla ensures that the quality of the products bearing its name remains intact. A trademark policy that is based on trust might seem naive—infringement would be far too easy—but it also seems to have its advantages. Mozilla’s collaborators could infringe, and some probably do, but they could also co-operate. Without this co-operation, Mozilla’s Firefox browser would not be one of the most popular browsers on the web.

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