January 31, 2008.
Amiga Inc would like the judge to dissmiss Cause #6 and Cause #7 from Hyperion's amended counterclaim (Doc #98 on Justia).


Some of their claims:

- Hyperion is not the owner nor the registrant, not even an assignee of any Amiga related trademarks, and thus cannot pretend that “Amiga Delaware’s past and present use of the Amiga trademarks violates Hyperion’s explicit contractual rights under the Agreement”.

My personnal note: At the time William Kinsel did his research and brought the claims (counterclaims) to the court, the Amiga names and logos were not registered to Amiga Inc Delaware. So whatever Hyperion was right or wrong to engage in that route, their claims were not false.


- “Amiga One Partners” is a juridical entity separate from Hyperion, comprising Hyperion and Eyetech. Hyperion is not the real party in interest and/or Hyperion has failed to join Eyetech, a necessary party.

We already have had some discussions as to whether "Amiga One Partners" was to be considered a single juridical entity (and the only party tied by the 2001 Agreement with AInc), or just a name grouping "Hyperion and Eyetech, collectively".
(See eg this thread where I put my noose in: Hyperion VOF v. Amino Development Corporation, and this post)

Curious AInc insists on playing this card, as they put themselves into several contradictions.
Why then has they (AInc) started a law suit against Hyperion, not Amiga One Partners ?
Since they (AInc) initiated the suit, wasn't it up to them to join Eyetech, "the necessary party" ?

Last edited by AmigaPhil on 01-Feb-2008 at 11:35 PM.
Last edited by AmigaPhil on 01-Feb-2008 at 11:34 PM.

@AmigaPhil
Quote:

Curious AInc insists on playing this card, as they put themselves into several contradictions.

What matters is what the judge decides. Once the decisions are made it doesn't matter what contradicts what after those decisions are made. The facts don't matter either after the decision is made. Such is a court of law.

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ExecSG Team Lead

@AmigaPhil

Quote:

AmigaPhil wrote: Curious AInc insists on playing this card, as they put themselves into several contradictions. Why then has they (AInc) started a law suit against Hyperion, not Amiga One Partners ? Since they (AInc) initiated the suit, wasn't it up to them to join Eyetech, "the necessary party" ?

No, Eyetech isnt violating the contract, AI sued Hyperion for illegal use of there trademarks, there was no reason for them to join Eyetech. Hyperion's counterclaims are the ones that require Eyetech they have in fact claimed that they (and not KMOS) are the owners of the trademarks, thats not accurate, but that is what they are saying. Hyperion is also basically trying to sue on behalf of Eyetech over the 2003 contract.
-Tig

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@Tigger

Quote:

No, Eyetech isnt violating the contract, AI sued Hyperion for illegal use of there trademarks, there was no reason for them to join Eyetech.

Not since now Amiga Inc is asserting that the "Amiga One Partners" is a partnership, a legal entity (THE second party of the 2001 agreement). Doc #59 and Doc #98.

It remains to be demonstrated that there is indeed a partnership settlement that create the legal entity Amiga Inc refers to.
Introduced in Doc #98, Amiga Inc try to streghten its claim by mentionning this from the agreement:
Quote:

[ ... ] and the second “WHEREAS” clause in the “RECITALS” section of the Agreement states: “WHEREAS Hyperion has partnered with Eyetech Ltd. in the Amiga One project . . .” (emphasis added).

IMHO, that's still very weak to prove that there is a partnership agreement between Hyperion and Eyetech to form a legal "juristic person".
To quote myself from this post :
Quote:

To my knowledge, the first time the name "Amiga One Partners" appears in a legal document is in the 2001 Agreement. What the contract tells is that "Amiga One Partners" is defined (written under the "Definitions" article, just like "Software" is too) as "Hyperion and Eyetech collectively". THAT'S ALL ! There is nothing else in the 2001 Agreement, nor (AFAIK) in any other legal document, that settle the terms and conditions of a partnership agreement between Hyperion and Eyetech to form a "Amiga One Partners" entity. Nothing to determine when the partnership starts and when it ends, what are the obligations of each party to each other, what are the clause of termination, how other contracts can affect the agreement or not, NOTHING. The 2001 agreement does not even explicitly stipulate that the "Amiga One Partners" definition is implicitly appliable to any other contract involving either Hyperion or Eyetech.

(See also whose's response)


But let conceade for a moment that "Amiga One Partner" is what Amiga Inc now claims it is.
The simple fact that Eyetech is no more around in the Amiga business raise questions:
- Either Eyetech left. The "Amiga One Partners" partnership stop to exist. The 2001 agreement has no more reason to be. The trial will comes to an end sooner than expected.
- Either Eyetech is still a party (or a sub-party) of the 2001 agreement. They failed to fulfill their part of the obligation (to produce Amiga One). But whoever Eyetech and/or Hyperion broke the contract, according to AInc recent assertions, it's the "Amiga One Partners" who is at fault. So Amiga Inc had to join "the needed party" - Eyetech - when they decided to sue Hyperion in the first place.

Furthermore, quoting AInc themselves from Doc #98 :
Quote:

Hyperion, itself, admits in paragraph 40(a) of its Amended Counterclaims that, to the extent the Agreement grants any purported trademark rights, those rights are granted solely to the “Amiga One Partners.” Thus, Hyperion necessarily concedes that it lacks standing individually to bring any claim at all against Amiga Delaware based on the alleged licensee pursuant to § 2.07 of the Agreement. See Seltzer v. Chadwick, 26 Wash. 2d 297, 301, 173 P.2d 991 (1946) (“In order to maintain an action upon a partnership asset, the partners must be joined as parties to the action”); see also Cheesman v. Sathre, 45 Wash. 2d 193, 203, 273 P.2d 500 (1954). This requirement was based upon the rule that a "partnership cannot sue or be sued apart from its members." Seltzer, 26 Wash. 2d at 301 (quoting Yarbrough v. Pugh, 63 Wash. 140, 145, 114 P. 918 (1911)).

(Emphasis added)



Let's not forget these articles from the 2001 agreement:
Quote:

6.03 Consequences of Termination. In the event this Agreement is terminated in accordance with article 6.02 hereof, this Agreement shall remain in force with respect to the parties other than the party found to material breach of this Agreement pursuant to article 6.02 hereof. Articles IV, V, VI and VII shall in any event survive termination of this agreement.

(Emphasis added)
Quote:

7.02 Independent Contractors. In making and performing this Agreement, Amiga and Amiga One Partners act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.

Quote:

Hyperion is also basically trying to sue on behalf of Eyetech over the 2003 contract.

@AmigaPhil

Quote:

Not since now Amiga Inc is asserting that the "Amiga One Partners" is a partnership, a legal entity (THE second party of the 2001 agreement). Doc #59 and Doc #98.

Yep, but it isn't the partnership that is using the trademarks, nor is it the partnership that was paid and has failed to deliver the goods.

Thus, it makes sense to sue the ones who *are* doing those things. On the other hand, Hyperion is claiming that they have trademark rights resulting from the agreement, and that Amiga is violating those rights. Hyperion, individually, has no rights, as whatever rights were granted were granted to the partnership. Thus, Amiga's argument is, Hyperion individually cannot possibly sue the way they are.

@umisef

Quote:

Yep, but it isn't the partnership that is using the trademarks, nor is it the partnership that was paid and has failed to deliver the goods. Thus, it makes sense to sue the ones who *are* doing those things.

I think you don't get it.

IF what Amiga Inc. says that "Amiga One Partners, and not Hyperion, individually, is the real party in interest" because "“Amiga One Partners” [is] a juridical entity separate from Hyperion, comprising Hyperion and Eyetech" is true (and I think article 6.03 from the agreement denies this),
THEN any (trademark) infrigement by Hyperion to the 2001 agreement makes the "Amiga One Partners" (all the members of the "partnership") liable is also true.
("a partnership cannot sue or be sued apart from its members.")

Overall, if the judge was to grant Amiga Inc.'s motion as it is, then Amiga Inc. is in trouble with the whole case, as they failed to join Eyetech ("the necessary party") since the begining.
(“In order to maintain an action upon a partnership asset, the partners must be joined as parties to the action”)

Last edited by AmigaPhil on 03-Feb-2008 at 07:39 PM.
Last edited by AmigaPhil on 03-Feb-2008 at 07:37 PM.

@AmigaPhil

Your confusing 2 SEPERATE issues:

AInc claims that HYPERION has violated their trademarks and is refusing to deliver paid goods.

Hyperion claims that THE AMIGAONE-PARTNERS now own that Amiga-trademarks, therfore it Eyetech would have to join this lawsuit in order to make it valid.

Nothing contradicting here ... until you bring in Hyperion's claim that Eyetech was needed for the 2003-contract that is

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@Kronos

Quote:

AInc claims that HYPERION has violated their trademarks and is refusing to deliver paid goods.

Hyperion, who according to Amiga Inc. in doc #59 and #98, is ONE of the TWO members of the partnership ("Amiga One Partners") which is THE party liable by the 2001 agreement.
(Again, Amiga Inc. itself uses as a defence that "a partnership cannot sue or be sued apart from its members.")

Quote:

Hyperion claims that THE AMIGAONE-PARTNERS now own that Amiga-trademarks

Just for the accuracy: that's not IIRC exactly what Hyperion said. Hyperion claimed that "Hyperion and Eyetech" were the successors or assign of the trademarks (trademarks which, for the story, were not yet registered to Amiga Inc. Delaware).
In Doc #98, Amiga Inc. deny this "Hyperion and Eyetech", and says that in article 2.07 of the agreement, only "the Amiga One Partners are granted an exclusive, perpetual, world-wide and royalty free right and license to develop (at their sole expense), use, modify and market the Software and OS 4 under the “Amiga OS” trademark."

Last edited by AmigaPhil on 03-Feb-2008 at 08:47 PM.
Last edited by AmigaPhil on 03-Feb-2008 at 08:46 PM.
Last edited by AmigaPhil on 03-Feb-2008 at 08:36 PM.

@AmigaPhil

It simple was not the AmigaOne-partners that used the Amiga-trademarks after AInc cancelled the contract, it was Hyperion alone therefore their the ones who are liable.

Since car-analogy are the popular:

Imagine you have a problem with Chrysler, than you would sue that investment-group who own them now.

But if your trouble dates some years back you might have claims Daimler-Chrysler, a company that doesn't exist anymore (in this form). There might be even cases where Daimler would be the right target over an issue you'd have with Chrysler .....

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@Kronos

Quote:

It simple was not the AmigaOne-partners that used the Amiga-trademarks after AInc cancelled the contract, it was Hyperion alone therefore their the ones who are liable.

(Ok. Let me think a moment...
Would that make the 2001 agreement a 4 parties contract - Amiga, Hyperion, Eyetech, Amiga One Partners - (because there are 4 distinct liabilities involved) )

What I find hard to understand is this:
We have now AInc rejecting Hyperion's allegation of "AInc infriged our trademarks" (to make it short) because they claims (amongst other things) that Hyperion cannot do that without joining the other member of the partnership (Eyetech).
However, they (AInc) did not join Eyetech when they sued Hyperion for trademark infrigement. Not because they had to sue Eyetech for trademark infrigement too, but simply because Eyetech is a member of THE partnership, and is too a recipient of perpetual, world-wide right and licence as described in article 2.07.

(Hmm, maybe I should give up for now, and wait to see what the Judge decide about this motion)

Last edited by AmigaPhil on 03-Feb-2008 at 11:04 PM.
Last edited by AmigaPhil on 03-Feb-2008 at 10:11 PM.

@AmigaPhil

Don't forget it's 2 side contract:

one side Amino alone
the other the "AmigaOne-partners" aka. Hyperion&Eyetech

A rather stupid construct I would say, but sofar everything about that contract seems to be damn stupid ...

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@Kronos

Quote:

one side Amino alone

You meant Amiga Inc. Delaware pka KMOS, don't you ?

@AmigaPhil

Quote:

Would that makes the 2001 agreement a 4 parties contract - Amiga, Hyperion, Eyetech, Amiga One Partners - (because there are 4 distinct liabilities involved) )

The thing to remember is that Amiga is not suing over a breach of contract. They are suing over something that, explicitly, has nothing to do with the contract (namely the use of trademarks outside the realm which may or may not have been sanctioned by the contract).

Just because a partnership is formed (which for the granting of trademark licenses it undoubtedly was --- the trademarks were licensed to a collective, not to individual entities) does not mean that the individual entitiies cease to exist. If Hyperion's deal with Smith Aerospace (or some such) had gone sour, would you expect Eyetech to be involved in that?
Yes, this brings up various questions (e.g. how the forum choice of 7.08 is relevant when they are suing for something unrelated to the contract), but as Hyperion failed to bring up those issues so far, they are non-issues.


As for the "they took the money and didn't deliver the goods" part of the Washington case (which has always be a bit at odds with the claimed subject matter) --- yes, the contract *does* set out bot individual rights and responsibilities, as well as collective ones. 2.06 even spells it out:
Quote:

[...]Other than the rights and licenses granted to the AmigaOne Partners and Hyperion and Eyetech individually[...]

.
It's the same 2.06 which spells out that Hyperion is to deliver OS4 source, interest and title, and 3.01 spells out that Amiga will pay Hyperion for it.

On the other hand, Hyperion's challenged counterclaims are over trademark rights --- and the trademark rights, *any* trademark rights, under the contract were handled by the AmigaOne Partners. 2.01, 2.07, 2.08 are all about AmigaOne Partners. So unless Hyperion can show not only how the license to use somehow turned into ownership, but also how ownership by the AmigaOne Partners turned into ownership by Hyperion, Hyperion, individually, does not own the trademarks.


Reading the contract through, it is quite clear that adding Eyetech to it was an afterthought, and one that was acted upon very badly. If you look at 7.03, for example, you find that Hyperion and Amiga could between them change the contract to say that Eyetech should pay them each $2000 per copy, retroactively...
The shareholders' deed for the company I work for is similar --- someone took a pretty general one-investor contract, added all sorts of hey-wouldn't-it-be-cool-if-we-could-get-the-idiots-to-agree-to-this clauses, and then added a second investor, kind of. As a result, it is full of internal contradictions, unworkable procedures, and ill-defined scenarios, spread out over 135 pages. Two years later, and the lawyers are getting rich....

Last edited by umisef on 03-Feb-2008 at 11:44 PM.

@AmigaPhil

Quote:

AmigaPhil wrote: What I find hard to understand is this: We have now AInc rejecting Hyperion's allegation of "AInc infriged our trademarks" (to make it short) because they claims (amongst other things) that Hyperion cannot do that without joining the other member of the partnership (Eyetech). However, they (AInc) did not join Eyetech when they sued Hyperion for trademark infrigement. Not because they had to sue Eyetech for trademark infrigement too, but simply because Eyetech is a member of THE partnership, and is too a recipient of perpetual, world-wide right and licence as described in article 2.07.

Any legal entity or person is always responsible for their own actions, regardless of whom they might be doing it together with. Amiga Inc. doesn't need to join all companies and/or people they think is infringing their trademark under one lawsuit and charge them as one.

However, in their defense, Hyperion is claiming to be acting under the rights granted to the AmigaOne partners in the license agreement, for which Amiga Inc. says would require Eyetech's participation. You see, even if Hyperion is an AmigaOne partner, they can't act on their own as such since Eyetech can for all we know disagree to Hyperions actions.

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@umisef

Quote:

The thing to remember is that Amiga is not suing over a breach of contract. They are suing over something that, explicitly, has nothing to do with the contract (namely the use of trademarks outside the realm which may or may not have been sanctioned by the contract).

The marketing and distribution of OS4.0 for "standalone" machines does not involve use of the trademarks as per the 2001 agreement.

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@Spectre660

Quote:

Spectre660 wrote: The marketing and distribution of OS4.0 for "standalone" machines does not involve use of the trademarks as per the 2001 agreement.

I'd strongly disagree, I'm fairly sure that the word Amiga is used as part of marketing and distribution of OS 4.0.
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@AmigaPhil

Quote:

AmigaPhil wrote: Just for the accuracy: that's not IIRC exactly what Hyperion said. Hyperion claimed that "Hyperion and Eyetech" were the successors or assign of the trademarks (trademarks which, for the story, were not yet registered to Amiga Inc. Delaware). In Doc #98, Amiga Inc. deny this "Hyperion and Eyetech", and says that in article 2.07 of the agreement, only "the Amiga One Partners are granted an exclusive, perpetual, world-wide and royalty free right and license to develop (at their sole expense), use, modify and market the Software and OS 4 under the “Amiga OS” trademark."

But in reality as document 60 and 61 show us they are registered to Amiga Inc, Delaware. The 2003 agreement and the 2001 agreement both say $25K goes to Hyperion they give us the source code and rights. Eyetech isnt involved so there is no reason for them to part of the suit. Hyperion is the one illegally using Amiga's trademarks, again, there is no reason for Eyetech to be involved. If Hyperion is correct about the license, that is something that is assigned to the AmigaOne Partners, they need Eyetech to agree in the court that they have the license, they just cant go claim it for themselves. Just like they cant try and sue on Eyetechs behalf by saying eyetech didnt agree to the 2003 contract as they are trying to do. They know Eyetech isnt going to show up on there side here, they just want to imply that Eyetech thinks they are good people and havent sued them by themselves (Doc 35 Exhibit P).
-Tig

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@AmigaPhil

Quote:

AmigaPhil wrote: But let conceade for a moment that "Amiga One Partner" is what Amiga Inc now claims it is. The simple fact that Eyetech is no more around in the Amiga business raise questions: - Either Eyetech left. The "Amiga One Partners" partnership stop to exist. The 2001 agreement has no more reason to be. The trial will comes to an end sooner than expected. - Either Eyetech is still a party (or a sub-party) of the 2001 agreement. They failed to fulfill their part of the obligation (to produce Amiga One). But whoever Eyetech and/or Hyperion broke the contract, according to AInc recent assertions, it's the "Amiga One Partners" who is at fault. So Amiga Inc had to join "the needed party" - Eyetech - when they decided to sue Hyperion in the first place.

You seemt to not understand that Amiga cancelled the 2001 contract on Dec 21, 2006, then sued after Hyperion refused to send the OS, despite the additional $8850 they sent them, and continued to use there trademarks even though the contract had been cancelled. Hyperion is the one violating the contract not Eyetech or the AmigaOne partners and Hyperion is the one not delivering the OS, not Eyetech of the AmigaOne partners, so Amiga Inc doesnt need to join Eyetech. Hyperion on the other hand is claiming that Eyetech didnt agree to the 2003 agreement and that the AmigaOne partners have a lifetime license, they are going to need Eyetech there to carry out either of those efforts.
-Tig

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@Tigger

Quote:

I'd strongly disagree, I'm fairly sure that the word Amiga is used as part of marketing and distribution of OS 4.0. -Tig

Thats what the 2001 Agreement says. The use of the Trademarks is for the amigaone products.

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@Tigger

Quote:

You seemt to not understand that Amiga cancelled the 2001 contract on Dec 21, 2006, then sued after Hyperion refused to send the OS, despite the additional $8850 they sent them, and continued to use there trademarks even though the contract had been cancelled.

A big legal question is do Amiga(D) have the rights to cancel the 2001 contract as they are not a party to it nor assignees to it.

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