I suspect that's still not actionable in the way the parent poster means, since AFAICT there no private right of action: You can't sue, only petition some government agency to bring their own lawsuit.
(Most other governments don’t grant these rights though)
Let's set aside all other claims (there are others), and take a look at "Unlawful, Unfair, and Fraudulent Business Acts" under that.
We'll also throw out unlawful business acts (I don't see anything unlawful so far).
Unfair: "An “unfair” business act or practice, as defined by the UCL, is typically committed by either a company or a business competitor. ... In the context of a business competitor, it is considered an unfair business act when the company does something that broadly undermines competition in the marketplace."
Additionally, they consider " immoral, unethical, oppressive, and unscrupulous" business acts to be unfair.
Banners on wp engine sites probably not a good thing under this. Threatening your competitors with bad keynotes unless they pay you, also probably not a great practice.
(I do think you'd be fine to say they suck. I just don't think you can get away with basically extorting them)
Fraudulent: "The UCL also prohibits “fraudulent” business acts or practices, which means any conduct that misleads or deceives consumers."
Note that it does not have to be defamation, or malice, or illegal. Just misleading or deceptive. More exactly, it does not have the elements of common law fraud - Intent is not a requirement, and negligence can be a violation.
So pure opinions without intent or with negligent intent that actually deceive consumers, while not defamation or common law fraud, are quite possibly a fraudulent business practice.
Overall, I think they have a stronger case than you might. Not on defamation, but on other things.
Regardless of the outcome, the approach i see taken by the Automattic CEO here seems remarkably stupid.
Don't mix your roles unless you want a court to mix your roles.
When he threatens to ban them from wordcamp[1] in what capacity is he doing it in?
1. Which, btw, the central website totally avoids mentioning who is in charge or paying overall anywhere i can find. I hope it's not the foundation (or him or automattic) and he's not mixing roles further while threatening his competitors.
I can't speak to the veracity of the facts presented in WP Engine's C&D letter, but my reading of it is they're accusing the head of the WordPress Foundation, in his official capacity, of putting the interests of his for-profit company ahead of the non-profit's stated mission. That's the sort of thing that could threaten the foundation's 501(c)3 status, or in extreme cases lead to criminal charges.
For example, if I have a WordPress site I've built from scratch out of WordPress.org, I am just going to assume trying to put it on WordPress.com will be annoying (and possibly even impossible?), because of issues with themes or plugins or whatever due to the fact that WordPress.com is a separate, hosted SaaS-style CMS, and not a hosting environment for WordPress sites.
WPE, by contrast, is Just Another Webhost to me, with some special bells and whistles for WordPress.
> I put banners on my web
There's a large difference between putting up a banner on _your_ site and abusing your position to put a banner on _every_ site you can.
Automattic is not the owner of WordPress, the WordPress Foundation is. Even though many employees of Automattic work (maybe full-time) on WordPress [1].
So I sell your aspirin in my shop, and a friend of yours helped you package your aspirins and while doing that put some stickers onto your aspirin.
[1] https://www.df.eu/blog/wer-steckt-hinter-wordpress-ueber-die... (German)
You sell a brand of aspirin in your shop. The brand has outsourced most of the production and decision-making to another company. That company puts messages on the bottle. If those messages bother me, I can bring it up with the brand and see if they'll address it, or stop carrying the brand, but the question of whether they've overstepped is for the brand owners rather than me.
Tortious interference - where one party (Automattic) interferes with a contractual relationship between two parties (WPengine, their customers), in this case by means of disparagement pushed to the dashboard of WPengine instances.
Matt Mullenweg. CEO of Automattic.
Now guess who The WordPress Foundation granted sole rights to sub-license their trademarks? You guessed it. Automattic.
Yeah, it gets worse the more you look at it.
What this means is that any "licensing fee" would be paid to Matt's private, for-profit, VC-backed company (and direct competitor to WPEngine) and there would be zero accountability for how it would be spent.
In practice, the foundation doesn't enjoy any benefit to owning the marks. It's all smoke and mirrors.
If there is a real-world open-source analogue to that situation, I'd be genuinely interested in hearing about it.
To me the solution seems simple; The WP Foundation should own and license the trademark. Then use the proceeds for its mission in a way that is accountable to the community (Automattic should not have to pay of course).
It's an obvious conflict of interest for a foundation that is supposed to be serving the community.
If you choose to use the WP.org software as is, it's kind of your fault, isn't it?
This seems to me plainly like regular old competition. Can you point to something that's clearly defamatory?
I was under the assumption that WordPress is OSS, and WPEngine is running this software on their platform, so there was an update to this software, contributed by Automattic developers which included a banner denouncing WPE, and the WPE people decided to just deploy that update to their platform?
I don't think that means they "put the banner on their instance" does it? If they are unhappy with the management of the open source software they are using on their platform they presumably could fork it, or decide to not deploy the version that includes this banner, no?
I have seen the mentioned blog post now [1] the whole thing is starting to make more sense to me.