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UnXis Claims It Got the UNIX and UnixWare Trademarks in Sale of SCO Assets - Huh? - Updated
Monday, April 11 2011 @ 08:01 PM EDT

UnXis has put out a press release claiming that the sale of SCO's assets went through and amazingly enough claiming to have gotten the UNIX and UnixWare trademarks. Of course, that isn't possible from all I know. They should probably talk to the X/Open group about that claim.

Lordy. This is like going back to Go. SCO made that claim too, if you recall at the very beginning, lo so many years ago, when SCO's assault on Linux was young and so was Groklaw.

Let me guess. UnXis doesn't want Groklaw to retire?

Eric LeBlan says, "We foresee our software becoming a critical component of the new Internet highways currently being developed in the Middle and Far East, from Riyadh to Beijing." New Internet highways? I hope they're just kidding around. If not, don't forget the tubes, guys. You need tubes for the Internets, y'all.

Well, maybe the plan is to sell where no one knows who SCO is and how they have historically treated customers.

The press release issues from Dubai:

UnXis Completes Purchase of SCO Unix Assets

DUBAI, UAE, April 11, 2011 /PRNewswire/ --

- New Vision and Leadership to Shape Future of SCO Unix Technology, Supported by New Team to Drive Innovation and Talent Acquisition

UnXis, Inc. announced today that the purchase of The SCO Group, Inc. operating assets and intellectual property rights has been successfully completed with the transfer of the entire Unix operating systems and software solutions and employees of The SCO Group. UnXis now owns all intellectual property rights and assets related to SCO clearing the way for financial growth and pioneering technical improvements, under its new leadership.

UnXis is committed to investing $25 million over the next 18 months into product and technology developments, as well as building upon its world-class management, sales and customer support team. UnXis has retained all customer contracts, the UNIX and UNIXWARE trademarks and an installed base of 32,000 customer contracts maintained in 82 countries, including McDonald's, Siemens, Sperbank, China Post, Thomson Reuters and the US Department of Defense.

UnXis, Inc is owned jointly by Stephen Norris, previous co-founder of the Carlyle Group and MerchantBridge, a leading international private equity group with diverse interests operating from offices in the United Kingdom, Iraq, Saudi Arabia, Lebanon and the United Arab Emirates. MerchantBridge has completed nine private equity transactions in the past five years, with an enterprise value of $4.5 billion.

UnXis has appointed Richard A. Bolandz as CEO. Over the past twenty years, Bolandz has lead competitive strategy, corporate development and technology commercialization at organizations including Qwest Communications MCI Communications and UNISYS Global Outsourcing & Infrastructure Services.

Richard A. Bolandz, CEO of unXis commented today: "Our first commitment is to our customers, value added resellers and channel partners to support their existing needs as well as a whole new generation of hardware, software and trends of the cloud."

Eric le Blan, Vice Chairman of unXis and COO of MerchantBridge, continued by saying: "The acquisition of this exciting business is opening up vast opportunities within the IT sector and unXis is strategically positioned to aggressively grow in the coming months. We are delighted to announce that the entire staff of The SCO Group has accepted employment with unXis, Inc, and I thank them for their enthusiastic backing as well as SCO customers for their support. With the continuity provided by the team and the active role played by key customers, together with the expertise of the partners that we are bringing on board, we are strategically positioned to provide the most reliable, secure and scalable operating systems in such diverse environments as global cloud computing enterprises and small and medium-size businesses; such is the flexibility of our software solutions. We foresee our software becoming a critical component of the new Internet highways currently being developed in the Middle and Far East, from Riyadh to Beijing."

Under the new vision, unXis will focus on 3 immediate priorities:

- Industry-Leading Technology

Harnessing the unmatched reliability, scalability and security of Unix, the company has a dedicated vision to serve small and medium-size businesses, enterprise and OEM customers through development of a new generation of hardware, software and cloud computing.

- Collaborative Operating Model

The company is committed to collaborating with each customer across SCO's vast footprint across 82 countries to provide the best, customizable technology solution and support to drive their business forward.

- Best and Brightest Talent

The company is making an enormous investment in talent with some key strategic hires as well as doubling resources in engineering, technical support and customer relationship management.

"With today's completion of the acquisition, we have cleared the way for the rebirth of the Unix operating system that for nearly 30 years has reliably powered mission-critical information systems around the globe. With the purchase of these valuable assets complete, we can now focus 100 percent of our attention on bringing state-of-the-art technology capabilities to the Unix platform, improving customer service and support, whilst capitalizing on the robust and secure SCO Unix operating system for today's cloud-based systems." concluded Bolandz.

About unXis Inc.:

UnXis was formed by Stephen Norris and MerchantBridge to acquire all the operating assets and intellectual property rights of The SCO Group, Inc. http://www.sco.com

For more information please visit http://www.unxisco.com

About MerchantBridge:

MerchantBridge is an international private equity group established over a decade ago by a group of industry veterans. It is authorized and regulated by the FSA in London and also has offices in Lebanon, Iraq, Saudi Arabia and the United Arab Emirates. MerchantBridge specializes in identifying opportunities across the MENA region and Europe and executing on complex, cross-border opportunities, as well as offering corporate finance advisory services in select situations to multinational corporations and governments. Over the past five years MerchantBridge has completed nine private equity transactions in Europe, Canada and the Middle East. These investments have an enterprise value of $4.5 billion, generating an IRR in excess of 40 per cent on realised and unrealized private equity and direct investment transactions. Diversification, creative thinking and adherence to ethical principals are the pillars of MerchantBridge's success. In Iraq, MerchantBridge is already engaged in telecommunications ("Asiacell"), commercial banking ("Mansour Bank") and oil and gas services. http://www.merchant-bridge.com

So, does the vision include 64-bit? Just asking.

Here's why I don't believe that UnXis got the trademarks:

  • The 1995 Asset Purchase Agreement [PDF] between Novell and Santa Cruz Organization had an Excluded Assets schedule, which read like this:
    Excluded Assets
    (Page 2 of 2)

    V. Intellectual Property:

    A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

    B. All Patents

  • Then Amendment 2 clarified like this: "A. With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:
    All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks."
    As you are aware, at trial, it was decided by the jury that this meant that the copyrights didn't transfer at all. The case wasn't about trademarks, but you can extrapolate.

  • You don't even have to do that much. Here's the hearing where SCO said that it didn't have the trademarks, when Wayne Gray tried to get them, claiming that SCO did in fact own the trademarks [transcript as PDF]. It was brought out at the hearing that in 1996, the trademark UNIX was fully assigned to X/Open. Bonnie Fatell for SCO, on page 39: "But, essentially, it is the position of SCO, Novell and X Open that pursuant to this confirmation agreement that the trademarks were transferred and registered with X Open and that SCO does not claim an ownership right to those trademarks. That's history." Here's the paragraph that matters from that agreement, which Santa Cruz signed:
    paragraph from page 3 of the 1996 document is pertinent: 5. This Agreement supersedes all prior agreements, arrangements and understandings among the parties and, together with any relevant portions of the 1994 Agreement that are not inconsistent with this Agreement, constitute the entire understanding among the parties relating to the subject matter of this Agreement. No addition to or modification of any provision of this Agreement shall be binding on the parties unless made by a written instrument signed by a duly authorized representative of each of the parties.
    This means this 1996 document trumps whatever was said in 1995 or earlier. And here's the language:
    NOW, THEREFORE, for appropriate consideration, the adequacy and sufficiency of which are acknowledged, the parties agree as follows:

    1. At the request of X/OPEN, NOVELL shall, as soon as possible after the date of execution of this Agreement, execute appropriate assignment document(s), to be prepared by X/OPEN, formally transferring to X/OPEN the legal title to the UNIX trademark. As among NOVELL, SCO and X/OPEN, and notwithstanding any prior understandings to the contrary, NOVELL shall for this purpose be considered the owner of legal title to the UNIX trademark and shall execute such assignment document(s) as assignor. SCO agrees that notwithstanding the fact that NOVELL will be executing such assignment document(s) after the Closing Date established by the APA, such assignment by Novell shall not be considered a breach of NOVELL's obligations under the APA. X/OPEN acknowledges and confirms that, as of the date of execution of such assignment document(s) ("Assignment Date"), it will be solely responsible for all expenses and fees incident to the protection and enforcement of the UNIX mark, including but not limited to expenses of seeking, obtaining and preserving registration of same, and the expenses of transferring existing registrations into the name of X/OPEN; provided, however, that with respect to any document that is required to be executed by SCO to perfect X/OPEN's title to such mark after such assignment, SCO shall execute such document without cost to X/OPEN.

    It was in 1994 that Novell promised the trademark to X/Open, and in 1996 it was fulfilled. You can find links to the document on the hearing notes page. And all this was hashed out in a court case Gray brought in Florida, where he claimed SCO had the trademarks, and he lost. All his claims were tossed out on summary judgment, and here's the Order. He appealed and he lost again. So on what basis could SCO sell the UNIX trademark to unXis? It didn't own them to sell.

  • Here's X/Open [PDF], which was involved in the Gray litigation and in the USPTO matter, telling what happened:
    Novell granted X/Open an exclusive license to use the UNIX mark in an agreement dated May 10, 1994, and subsequently assigned the UNIX mark to X/Open pursuant to that agreement.
  • X/Open, also known as the Open Group, told that to the world back in 2004, explaining that SCO doesn't own the UNIX trademark or the UnixWare trademark:
    They don't own UNIX; they have only the same rights to use the trademark as any other certified product. They are incorrect in asserting UNIX ownership. They do not own UNIX or the UNIXWare trademarks, they do own the source code to the UNIX implementation that they purchased from Novell and the UNIXWare product, but they do not own UNIX. We will continue to stand up and correct such misstatements when we find them. . .
    SCO can't have sold to UnXis what it doesn't own.

  • Here's what they have on their website:
    The Open Group holds the definition of what a UNIX system is and its associated trademark in trust for the industry.

    In 1994 Novell (who had acquired the UNIX systems business of AT&T/USL) decided to get out of that business. Rather than sell the business as a single entity, Novell transferred the rights to the UNIX trademark and the specification (that subsequently became the Single UNIX Specification) to The Open Group (at the time X/Open Company). Subsequently, it sold the source code and the product implementation (UNIXWARE) to SCO. The Open Group also owns the trademark UNIXWARE, transferred to them from SCO more recently.

  • Novell told the appeals court, when Gray tried to get permission to file an amicus brief, which was denied, that the transfer of the UNIX trademark to X/Open was more than a two-step process:
    The UNIX trademarks in question were transferred from Novell to X/Open by way of a 1993 term sheet between Novell, X/Open, Digital, HP, IBM, and Sun; a 1994 licensing agreement between Novell and X/Open; a 1996 confirmation agreement between Novell, SCO, and X/Open; and 1998 deed of assignment between Novell and X/Open. None of those agreements, nor any of the surrounding evidence, was presented to the Utah district court, as none had any relevance to the issues in dispute at the district court or on this appeal.
    Like I said, it wasn't part of the SCO v. Novell trial, but the UNIX and UnixWare trademarks clearly don't belong to unXis, no matter what they say in a press release. And I'd opine that if they were serious about going into the UNIX business, they wouldn't make a mistake like this. But that's just my best guess. But wouldn't you think, if they were serious about investing in Unix to the tune of millions, they'd do their due diligence and find out what they are buying?

    I'd say unXis is making a rather awkward entrance on to the world's stage. Another way to look at it would be that they are living up to their SCO heritage.

    Update: I have learned from a couple of readers who contacted the X/Open Group that what unXis got, or more exactly will be getting, was a license, the same license that SCO had, to use the UNIX marks. I am informed as well that X/Open replied to one such inquiry regarding this press release: "In the meantime, we are requesting UnXis to clarify and correct its press release that misstates the matter of trademark ownership."


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