@woon

Quote:

woon wrote: @thread Justia 106 to 109

Document 107 is the most interesting one. It gives them until July to set a discovery completion deadline, amongst other things. It also again states that they should try to settle out of court ASAP and orders them to enter mediation or Alternate Dispute Resolution (ADR) unless both parties agree not to.

Hans

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@Hans

Ah, even the judges think this lawsuit is too stupid to be true.

Now only to hope the parties involved finally understand this.

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@Thread

Excuse me a second, have a look at the begining of 105.

Am I reading that right? Are Hyperion arguing that Amiga Inc hasn't got the right to call themselves Amiga?

Last edited by SpaceDruid on 20-Jun-2008 at 03:18 PM.

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@SpaceDruid

That's nothing new actually, if memory servers me correctly they have said
that before in an eralier court document. Personallu I don'tI agree that one
contracted to update an OS can just take a brand name and run off with it.

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@SpaceDruid

My take on this document (and previous ones) is that Hyperion are claiming that the present party calling themselves Amiga Inc are actually pretenders to the throne. I think Hyperion are counting on the "fact" that the original Amiga Washington was insolvent and all the ensuing shell games were used to keep the creditors (including Hyperion) at bay.

---
redfox



[--- editing post to change bankrupt to insolvent ---]

Last edited by redfox on 21-Jun-2008 at 02:46 AM.

@redfox

Quote:

My take on this document (and previous ones) is that Hyperion are claiming that the present party calling themselves Amiga Inc are actually pretenders to the throne. I think Hyperion are counting on the "fact" that the original Amiga Washington was bankrupt and all the ensuing shell games were used to keep the creditors (including Hyperion) at bay.

Problem is, Amiga Inc-WA (now Amino) never went bankrupt. If they did, there would be bankruptcy paperwork to show the court of this fact.

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Dammy

@damocles

Sorry, I'm not an armchair lawyer. Perhaps I should have used the term "insolvent" instead of "bankrupt".

[--- I will go back and edit my original post. ---]

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@damocles

Quote:

Problem is, Amiga Inc-WA (now Amino) never went bankrupt.

Not bancrupt, insolvent. The contract says "insolvent", Hyperion says "insolvent", Amiga says (not) "insolvent". Additionally, Amiga-WA was dissolved. Hyperion argues that...

(a) A-WA was insolvent (not bancrupt) before being dissolved and before Hyperion agreed to the A-WA->Itec transfer and hence exclusive use of the "AmigaOS" trademark went to Hyperion as per the 2001 agreement

and

(b) the rights were never properly transferred from A-WA to Amiga Delware and thus, even if (a) turns out to be wrong, Amiga Delaware's claim to the Amiga trademarks is as good as anybody else's claim (yours, mine, Hyperion's). As Amiga Washington is dissolved, and parties like Hyperion (since 2001) and Cloanto (since about 1997) have already been using the trademarks commercially way before Amiga Delaware actually existed, the trademarks should be assigned to (one of) said other parties, not to Amiga Delaware. Apparently Cloanto shares that point of view, as both Hyperion and Cloanto filed complaints with the USPTO about the assignment of the Amiga trademarks to Amiga Delaware.

@PulsatingQuasar

Quote:

Ah, even the judges think this lawsuit is too stupid to be true.

:


The Judge has obviously never been an Amiga user.

Plaz

@Manu @Space Druid

In earlier docs they are disputing Amiga Inc. rights to the trademarks. That line could be extended to contest even the use of the name. I need to go read the latest though to see what it says.

Plaz

@cgutjahr

Quote:

(a) A-WA was insolvent (not bancrupt) before being dissolved and before Hyperion agreed to the A-WA->Itec transfer and hence exclusive use of the "AmigaOS" trademark went to Hyperion as per the 2001 agreement

But the origional contract never ever agreed to transfer the rights of Amiga unconditionaly to Hyperion/Eyetech if things went pearshaped , it limited the use to market OS4 only.



So if Hyperion succesfuly manage to argue that Amiga were insolvent, the best they can hope to achieve is the continuing use of Amiga OS4. They can't release Amiga OS5 or any other variation.

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Last edited by SpaceDruid on 21-Jun-2008 at 09:44 AM.
Last edited by SpaceDruid on 21-Jun-2008 at 09:44 AM.

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@SpaceDruid

Quote:

So if Hyperion succesfuly manage to argue that Amiga were insolvent, the best they can hope to achieve is the continuing use of Amiga OS4. They can't release Amiga OS5 or any other variation.

BUT..... They would be able to port OS4 to other hardware.

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@Swoop

I'm talking about the rights to the name, not what they can do with it. Hyperion seem to be trying to claim that Amiga Inc don't have the rights to the name "Amiga" (Not Amiga OS) because they lost that name when they went insolvent.

But the contract says nothing about Amiga Inc losing the rights to anything*, it only says that Hyperion can continue to call Amiga OS4, Amiga OS4. There is no transfer of rights anywhere in that or any other document I have seen other than the ones where Amino sold Amiga to Itec.

By making such an outragous claim right at the begining of that statement, Hyperion are not doing themselves any favours.



* My mistake, if Hyperion win, Amiga Inc will lose the rights to the name "Amiga OS4"

Last edited by SpaceDruid on 21-Jun-2008 at 10:55 AM.
Last edited by SpaceDruid on 21-Jun-2008 at 10:18 AM.

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@cgutjahr

Quote:

@damocles Quote: Problem is, Amiga Inc-WA (now Amino) never went bankrupt. Not bancrupt, insolvent. The contract says "insolvent", Hyperion says "insolvent", Amiga says (not) "insolvent". Additionally, Amiga-WA was dissolved. Hyperion argues that... (a) A-WA was insolvent (not bancrupt) before being dissolved and before Hyperion agreed to the A-WA->Itec transfer and hence exclusive use of the "AmigaOS" trademark went to Hyperion as per the 2001 agreement

1. It was never insolvent as per US Code definitions and law suit is in Federal venue.
2. Yeah, AI failed to file in WA state their annual report (read fee) for number of years. This has nothing to do with being insolvent and was reinstated within the five year grace period WA State gives to corporations. Again, that is state vs federal venue.

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@SpaceDruid

The contract shows "the Software and OS 4"

We know what OS4 is. What do you think Software would cover?

Just like the insolvency clause, I think this can be interpreted different ways. An example would be that Amiga, Inc cannot market DE.

Kirka

@kirka

Quote:

We know what OS4 is. What do you think Software would cover?

Well I know that it DOESN'T cover the naming of Amiga Inc or their right to call themselves that, which is what Hyperion are claiming in 105.

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@SpaceDruid

I was only talking about software, where you stated Hyperion was limited to OS4.

Kirka

I haven't looked through the court case documents in much detail, but as I haven't heard one important document being discussed much, so I am assuming it is not there. This document is the agreement/contract made between Gateway and (the first Bill McEwen run) Amiga Inc.

Surely this document is key in showing what rights Amiga Inc had to the Amiga name in the first place, as well as showing how insolvency (if confirmed) affects these rights. Is Hyperion pushing for these contract documents to be released?

@SpaceDruid

Quote:

SpaceDruid wrote: @Thread Excuse me a second, have a look at the begining of 105. Am I reading that right? Are Hyperion arguing that Amiga Inc hasn't got the right to call themselves Amiga?

I think you need to read more carefully then. This is what this boils down to. Amiga Delaware is often writing simply "Amiga" in their papers. Its a tactical move by them to blur the difference between Amiga Washington and Amiga Delaware, both to the judge and certainly it will be a strategy with any jury. But Amiga Delaware is the plaintiff and Amiga Delaware has already asserted that Amiga Washington still exists separately as a corporation to this very day. So Hyperion is objecting to Amiga Delaware calling itself simply "Amiga" in the first person for actions that it never could have undertaken because in some cases those actions occured before it existed and were actually undertaken by AW. Part of Hyperion's whole strategy is trying to show that their were illegal conveyances between those two separate legal entities (AD and AW), part of which includes the trademarks and their use.

I find your objections to this strategy ironic. You yourself use the same strategy when you excuse Amiga Delaware having any reason to honor coupons or t-shirt offers of Amiga Washington to your fellow affected Amigans. Hyperion is just continually trying to hammer home that these were two separate companies (on paper), yet that they oddly never acted as two separate companies in actual practice, with separate fidicuary responsibilites etc and for their defense the timeline of which did what when is important to their strategy. If it comes to a jury trial they are going to be relying on the average American jury member not liking back room corporate dealing. They want this in the spotlight every step of the way in this.

Now in fairness to Amiga Delaware, their lawyers are playing it right for them based on their arguments. They claim Amiga Delaware to be true heir to Amiga Washington and they feel the dates of transfer of trademarks are established, so its a good tactical play to just say "Amiga", after all in their argument they should basically equate, at least in rights in this case and one can always refer back to the dates (make the reader or jury member work for it and hope instead they take what is said at face value, Amiga = Amiga), but not that it should matter much in their argument since they are saying Amiga Delaware is the proper heir. And a key to winning with a jury down the line if need be will be to keep this corporate shuffling to an absolute minimum. Hell this is part of the reason they since have renamed Amiga Washington to Amino, this way when they absolutely need to refer to Amiga Washington they can now call them Amino.

Its typical lawyer games on both sides. Lawyers often win on perception and feelings, especially with juries, and even with judges at times.



As an aside:
In my mind if Amiga Delaware wants to lay claim so badly to that which was Amiga Washington's (now Amino) then they should take $90,000 (the estimate of what was taken from hard working Amigans) and pay it back. They got millions from Prokom in 2005, in 2007 they said they had millions for Kent, they write us an open letter on amiga.com asking for our sympathy and understanding directly. Where is the sympathy for the community and its missing money?

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@HenryCase

As far as I can recall those documents have not been entered or discussed. I can't access the exhibits anymore with my Amiga browsers, so I'm going by memory. I can view the main pdf files 1 to 109, but not the attachments.

---
redfox

Last edited by redfox on 21-Jun-2008 at 06:11 PM.
Last edited by redfox on 21-Jun-2008 at 06:07 PM.