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Phoenix flies from frying pan to fire

Phoenix, the new basis of AOL Time Warner's open-source browser, has undergone a name change to avoid a trademark dispute--again.

Phoenix, the new basis of AOL Time Warner's open-source browser, has undergone a name change to avoid a trademark dispute.

But the new name, Firebird, has only succeeded in landing the browser in another trademark conflict--this time with another open-source group., the open-source group that Netscape Communications founded to develop its browser code before AOL bought the company, has thus far released its browser under the name Mozilla. But after complaints that the browser had become too big and too slow, decided earlier this month to switch gears to Phoenix, a stripped-down version of Mozilla.

But once Phoenix--the name of a mythical bird that regenerates from its own ashes every five or six hundred years--headed for prime time, found that it ran afoul of trademark owner Phoenix Technologies, which markets a browser of its own.

"The name of the project originally known as 'Phoenix' is being changed to 'Firebird'...due to trademark issues, since it turned out (that) 'Phoenix' had been used for a browser before," Mitchell Baker, who leads under the title Chief Lizard Wrangler, wrote in an e-mail. "Similarly, the name of the project originally known as Minotaur (a mail client) is being changed to 'Thunderbird,' again due to trademark issues."

But trademark controversy also plagues Mozilla's choice of Firebird, which is used by another open-source development project that produces a relational database.

Confusingly enough, the sponsor of the Firebird open-source effort goes by the name of IBPhoenix. That group, formed in 1984 by InterBase Software, launched its open-source project in 2000, after Borland Software acquired it in 1991.

"This seems really unfortunate," said Ann Harrison, chief technology officer at IBPhoenix. "We have a bunch of people who are working really hard to create something that's used by people around the world. And having our (Firebird) name taken seems very unfair."

The dispute between the two open-source groups is contingent on whether the browser and the database software can be considered to belong to the same industrial category. Trademark law hinges on the question of consumer confusion. Apple Bank and Apple Computer can coexist without overstepping trademark boundaries, for example, but a new computer maker calling itself Apple would likely lose a trademark suit.

"It is quite common for different products to share the same namespace," Baker said. "This happens quite a bit; even 'Firebird' is used by a variety of companies in the computer realm. We believe that the Mozilla Firebird browser is a distinct and different product from any of the other existing uses of 'Firebird.'"

Mozilla has treaded the choppy trademark waters before the Phoenix and Firebird controversies. The group and AOL--which owns the intellectual property associated with the Mozilla mascot and brand--have had to negotiate over the years with Toho, the owner of the Godzilla trademark, in order to use the Mozilla name.

Readers of Mozillazine, a Web site devoted to news about the Mozilla project, are debating the name change and trademark conflict, with several of them coming to the defense of the Firebird database.

"It's a bad idea in my humble opinion to use such a name for yet another open-source product, even if it is playing in a different playground," one Mozillazine reader wrote in a posting. "I...would definitely have to think about how to distinguish the two (with respect to directory and menu names) on my system, as I will certainly be using both."

IBPhoenix on Tuesday posted a Web page asking Firebird users and developers to urge Mozilla administrators and technical leaders to drop plans to use the Firebird name. The page lists the names and e-mail addresses of key Mozilla participants and links to discussion forums where the name change is being debated.