HP C&Ds Sun over President's blog -- Chilling Effects Clearinghouse

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HP C&Ds Sun over President's blog

September 28, 2004

Sender Information:
Hewlett Packard Company
Sent by: [Private]
[Private]
Cupertino, CA, 95014, USA

Recipient Information:
[Private]
Sun Microsystems, Inc.
Santa Clara, CA, 95054-177, USA

Sent via:
Re:

Dear [Private]

Hewlett-Packard Company has recently learned of the follwing misstatements of facts appearing on Sun?s web site and in Sun?s advertising related to HP-UX.

1. ?HP?s problems spawn from the death of? their operating sysytem, HP/UX, like IBM they?ve elected to ask their customers and ISV?s to move to Red Hat Linux or Microsoft Windows on x86 systems.?

2. ?HP/UX won?t even run on HP?s own industry standard servers.?

Both statements are found at the following Sun?s web page:
http://blogs.sun.com/roller/page/jonathan/20040816

These statements are factually incorrect. HP-UX is fully supported on HP9000 and HP Integrity systems and will continue to be supported. HP has never asked its HP-UX customers or [ ? ] to move to a different operating system on x86 servers. This statement that HP-UX has ?died? is completely unfounded. HP?s public long term roadmap for HP-UX details significant R&D plans to add new features, and clearly refuses this falsehood. In addition, since 2001 HP-UX has been supported on HP?s industry standard HP integrity servers.

3. ?Is HP running from you and its HP-UX and Tru64 Commitment??

This statement appeared in a Sun web advertisement on the Wall Street Journal online ad September 13,2004 ( attached is a copy of the ad .)

This statement claims that HP is not committed to its HP-UX and Tru64 UNIX customers. he objective evidence refutes this supposition. HP has initiated several programs, including [ ? ] HP9000 Evolution and Alpha Rain Trust programs which are committed to protecting customer?s investments in HP-UX and Tru64 UNIX as customers evolve to HP Integrity.

4. ? Less than two years after abandoning its inherited Tru64 UNIX customers , HP seems [ ? ] the same path once again to abandon another one of its very loyal customer bases. This tiem ? its HP-UX UNIX cutomer base, which is now beginning to see signs that HP may not be committed to the HP-UX UNIX business for the long haul.? ( See http://www.sun.com/executives/realitycheck/reality.091004.html)

HP has not abandoned its Tru64 UNIX customers. In addition to the enhancements to AlphaServer systems with the new EV7z processors introduced in August 2004, HP?s Tru64 UNIX roadmap includes future revisions and support through 2011.

The statement that there are ? signs that HP nay not be committed to the HP-UX business for the long haul? is without merit. The ?sign? referred to the article is the slippage of a release date for HP-UX IIiv3. But in fact, many of the features previously scheduled to be included in HP-UX IIiv3 were included in HP-UX IIiv2. In addition , as Sun understands through its own experience, it is very common in the industry to change a release date and it does not mean a company is not committed to a product.

5. ?More importantly, for both the Tru64 and HP-UX customers , HP-UX IIv3 was going to be the same version for both the HP 9000 family and the HP Integrity family. Greatly simplifying architecture decisions, deployment and support, as well as minimizing disruptive transitions in the future. And it was promised for late 2004.

In October 2003 HP Senior Vice President, Rich Morcello, had to admit, due to technical difficulties, this was not a timetable HP could keep, and the delivery date for HP-UX IIiv [ ] as pushed out to ?late 2005? . Recent rumblings in the industry suggest that this date may not slip into 2006.

This slippage of HP-UX IIiv3 by up to 18 months ( currently) is a major concern for existing HP-UX customers.

First it deprives them of functionality that many need and want . Second, it diminishes Independent Software Vendor ( ISV) interest in porting to HP-UX?s ? designated platform ?. [ ? ] until this major release of HP-UX is available . Third , it allows other operating systems, [ ?] Linux and Windows Server to establish a foothold on the Itanium platform well before the [ ?] HP-UX will be available. ? (http://www.sun.com/executives/realitycheck/reality-091004.html)

HP assumes that Sun is referring to an out of date HP-UX roadmap. Sun incorrectly states that HP did not eliver a common HP-UX release for both HP 9000 and Integrity in 2004. On August 16,2004 , HP announced a common merged release for both PA-RISC and Integrity platforms by adding HP 9000 support to HP-UX IIiv2 which accelerated this functionality previously planned for HP-UX IIiv3.

6. ? HP is abandoning HP-UX.?

Within the past month , Sun has included this inflammatory, misleading and incorrect statement on its homepage ( www.sun.com) on three different occasions. ( see attached slides).

As explained above, HP is fully committed to HP-UX and has no plans to ? abandon? HP-UX: HP?s customers as Sun inaccurately claims.

As you can appreciate, the above referenced statements are false, misleading to customers and damaging to HP?s business. HP asks that Sun immediately (i) cease making such claims, including fixing the offensive claims, (ii) release a public statement correcting such claims, or (iii) agree in the future to base statements only on valid, objective and verifiable data.

HP looks forward to receiving notice that the claims have been fixed within two weeks from the date of this letter.

Very Truly Yours,

[Private]

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FAQ: Questions and Answers

[back to notice text]

Question: What is Section 43(a) of the Lanham Act?
Answer: The Lanham Act is the basic federal trademark and unfair competition law. Section 43(a) (15 U.S.C. 1125(a)) is intended to protect consumers and competitors against false advertising and false designations of origin.
The law allows for suit against someone who makes false claims about its own or a competitor's products.

"? 1125. False designations of origin, false descriptions, and dilution forbidden
(a) Civil action
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

[back to notice text]

Question: What is trade libel?
Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true).
Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages.
Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage.

[back to notice text]

Question: What defenses may be available to someone who is sued for defamation?
Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

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