Our customers have asked us to comment on the writing by Lorne Cooper in
NuSphere's latest newsletter. I will respond to the three primary issues
raised in the newsletter: (1) The June 2000 agreement between Progress and
MySQL AB; (2) the mysql.org website; and (3) Gemini. For those of you
interested in the details, the counterclaim we filed is a public document
with the Federal Court of Massachusetts in Boston. The Interim Agreement is
an exhibit to the counterclaim.
First, NuSphere's president claims that for "a large sum of money" NuSphere
acquired rights to various mysql related trademarks. On 21 June 2000, MySQL
AB entered into an agreement with Progress that was an interim agreement
only. Under the Interim Agreement, MySQL AB agreed to allow Progress to
participate in the GPL announcement of MySQL. We agreed that Progress would
be permitted limited use of the MySQL mark and three combination marks
(limited to "NuSphere MySQL", "Enhanced MySQL", and "Rocket MySQL") in
starting to provide MySQL-related products and services. In exchange for
this there would be monthly payments of $104,167 to MySQL AB. NuSphere made
three such payments and then stopped paying. (They claim to have purchased
permanent rights to 3 specific MySQL-related names for $312,501.)
Because we had agreed that the Interim Agreement was intended to serve a
short-term purpose only, we further agreed to work toward a final,
definitive agreement concerning the business relationship. We at MySQL AB
have made every effort to reach a final agreement and we have been patient
with NuSphere despite numerous delays in taking matters forward and despite
breaches by NuSphere of the Interim Agreement.
Now NuSphere has claimed perpetual, exclusive ownership of the combination
marks and others. We are confident that the evidence will show that the
Interim Agreement did not give either Progress or NuSphere perpetual,
exclusive ownership of any MySQL combination marks. This dispute is
squarely before a federal court in Massachusetts.
Second, NuSphere's president claims that "mysql.org" is a non-profit
initiative. "mysql.org" is clearly not a non-profit initiative. The domain
name "mysql.org" was registered by NuSphere and the "mysql.org" website is
operated by NuSphere, a subsidiary of Progress, a publicly traded company.
NuSphere's operation of the "mysql.org" website is one example of how they
continue to intentionally trade on the MySQL name and goodwill. This has
caused actual confusion in the marketplace and injury to MySQL AB. NuSphere
continues to operate the "mysql.org" site for its own commercial purposes.
Third, NuSphere's president states that "MySQL AB claims that Gemini is a
'derivative work' of MySQL." MySQL AB does not claim that Gemini is a
derivative work of MySQL. Rather, we claim that NuSphere has distributed a
work based on the MySQL server without making all the underlying source
code available, as required by the GPL. NuSphere's violation of the GPL
automatically terminated its rights under the GPL. This means that NuSphere
no longer can modify or distribute the MySQL server. Please see the Free
Software Foundation website for further details on this.
We invited NuSphere to settlement talks on neutral soil for as long as it
would take. NuSphere responded by claiming they accepted the invitation but
actually offered only to meet in a two-hour conference call where they
refused to discuss the lawsuit and where no decision-making power of theirs
was present. At OSCON they wanted a new meeting, but again they would not
discuss the substantive issues and they had no decision maker present.
Finally I would like to thank our users for your interest in this case and
for the great support we have received and continue to receive.
Marten Mickos
CEO, MySQL AB
(database,sql,query,table)
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