Re: mysql.org

[Steve Werby]

"Michael Widenius" <monty@stripped> wrote:
> By using mysql.org they are also violating our trademark;  If we are
> not defending our trademark we may loose it.

I'm sure you and your attorneys have considered this, but for the benefit of
others on the list I'll mention that the Uniform Domain-Name
Dispute-Resolution Policy (UDRP) (see
http://www.icann.org/udrp/udrp-policy-24oct99.htm ) is a mechanism that
ICANN currently has in effect by which a party other than the registrant of
a domain name can dispute the registration and use of the domain name by the
registrant.  In this case it appears the domain name was transferred as
opposed to registered so MySQL AB can dispute the use of the domain name.  A
judgment will result in a determination that nothing should be done, the
domain name should be cancelled or it should be transferred.  The process is
rather low cost ($1,500 for a 1 person panel, more for 2 or 3 person panels)
since attorneys aren't involved and moves rather quickly and is a good
alternative to going to court.  I should mention that there is an
anti-cybersquatting law in the US that can also find for damages up to
$100,000 and federal and state trademark laws; however I do not know the
legalities considering NuSphere is in the US and MySQL AB is not.

To get a judgment against NuSphere *all three* of the following must be
found:

(i) your domain name is identical or confusingly similar to a trademark or
service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain
name; and
(iii) your domain name has been registered and is being used in bad faith.

(i) should be easy to demonstrate.  (ii) would appear to be more difficult.
(iii) should be easy to demonstrate since they clearly sell a product for
profit based on MySQL and is best reflected in (iv) of the policy's evidence
of use of a domain name in bad faith:

(iv) by using the domain name, you have intentionally attempted to attract,
for commercial gain, Internet users to your web site or other on-line
location, by creating a likelihood of confusion with the complainant's mark
as to the source, sponsorship, affiliation, or endorsement of your web site
or location or of a product or service on your web site or location.

I looked at mysql.org earlier today and I clearly recall that it had a
prominent hyperlink to nusphere.com.  I now see that they mention "This web
site is neither affiliated with nor endorsed by MySQL AB" and have a link to
mysql.com.  They also now have a disclaimer "This site was launched by
NuSphere Corporation with the intent to form, in the immediate future, a
not-for-profit entity to which the website will be assigned. This
not-for-profit foundation will own and operate the site thereafter,
following on the present interim period."  I am quite sure that wasn't
present earlier.  Hopefully someone from MySQL AB has a local copy of the
earlier version of the site.  If not, hopefully a list member will forward a
copy to them.  I am not an attorney so I do not know whether intent
qualifies as evidence of good faith, but record of hundreds of proceedings
under UDRP can be found at
http://www.icann.org/udrp/proceedings-list-name.htm.  I've read a dozen or
so since I am preparing for a potential dispute I may become involved in.
It might be advisable to move quickly before NuSphere is able to come up
with evidence to support their claim.  On the bright side this dispute is
likely to bring additional public awareness of the MySQL software and
benefit MySQL AB indirectly regardless of the outcome.  Just my 2 cents.

--
Steve Werby
President, Befriend Internet Services LLC
http://www.befriend.com/