Tibco starts legal tiff over Sonic benchmarks

That favorite tactic of IT marketers, the competitive benchmark, will be an issue in a courtroom if a lawsuit filed last week by integration software maker Tibco Software Inc. gets a full airing. The company last week filed a complaint against Sonic Software Corp. charging false advertising, unfair competition, and contractual breaches.

The dispute centers on a white paper posted on Sonic's Web site, titled "JMS Performance Comparison: SonicMQ vs. Tibco Enterprise for JMS." The paper summarizes the results of competitive benchmarking tests conducted on Sonic's behalf by software development and analysis firm Jahming Technologies.

Tibco's license states that its software can only be downloaded for internal use; Sonic violated those provisions in its use of the software, according to Tibco spokesman Bob Berger. Tibco also objects to the terms of the tests, which were conducted by Jahming under a contract with Sonic.

"Part of the issue is that the company they used to benchmark was not acting as an independent third party," Berger said. "(The test) was conducted on (Sonic's) premises, not in an independent lab, using Sonic's hardware."

Sonic, located in Bedford, Massachusetts, contends that its use of Tibco's software counts as internal and does not violate the software's licensing terms.

"We have every confidence we used the product exactly as specified," said Tim Dempsey, Sonic's vice president of marketing. "Every detail about these specific testing scenarios is all published and disclosed. We're not trying to pull the wool over anybody's eyes."

Rather than playing the victim, Sonic is taking advantage of the lawsuit to draw attention to its newly launched crusade to encourage open benchmarking in the software industry. The company recently modified its licensing terms to remove a requirement that outside parties obtain its written approval prior to publishing test results involving Sonic's software.

"We fundamentally believe that forces in the marketplace are going to operate as they have historically, and information about products is going to flow freely and naturally. Making decisions about purchases of this kind of infrastructure software is a non-trivial issue for any kind of sophisticated enterprise," Dempsey said. "Customers require a great variety of this kind of comparative product information, and we want to make sure they can get it."

Tibco, based in Palo Alto, California, is not currently seeking a damages judgment against Sonic; all it has asked for so far is a court injunction ordering Sonic to take down the benchmarking white paper, according to Berger. The lawsuit was filed in San Francisco County's Superior Court but is being transferred to federal court, where the parties expect hearings to take place within the next few weeks.

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