from page 12 document 99

"F. HYPERION IS THE OWNER OFTHE AmigaOS TRADEMARKS AND HAS
STANDING TO SUE FOR TRADEMARK DILUTIONUNDER §1125(C) "

Yeah right

_________________
AmigaOS or MorphOS on x86 would sell orders of magnitude more than the current,
hardware-intensive solutions. And they'd go faster.-- D.Haynie

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: This clearly shows that they were in possession of an OS 4.0 CD. Furthermore they had access to Olaf Barthel's CVS, as he stated in the court docs... You are wrong on both points, ...

You have your beliefs and I have mine.
In the end we will see who was closer to reality.

Quote:

Tigger wrote: @Dandy Quote: What do you think laws are based upon? Not morales in many/most cases.

I was taught at school that the first laws in the western world were based on The Ten Commandments and in the course of the time evolved to the present legal systems.
Aren`t the The Ten Commandments about moral?

Quote:

Tigger wrote: Its illegal by law to drive over 70 mph in the United States,

Here it is basically legal to drive as fast as you like on the Highways (as long as the traffic signs don`t tell oterwise and as long as the traffic situation allows it)...

Quote:

Tigger wrote: I can think of no moral reason for that.

Environment protection?
(I know - the US is leading in that area )

Quote:

Tigger wrote: You want Hyperion to win because you think they have white hats and McEwen is evil.

White hats - like the kukluxclan people?
Nahhhh - I don`t think so...

And I don`t think McBill is evil by default either - its just that he scammed me and therefor I don`t trust him anymore.

Quote:

Tigger wrote: I think AI will win because unlike the last 10 cases, they law is on there side this time.

And I wholeheartedly whish you`re wrong here and US law does not honour/support their scams.

Quote:

Tigger wrote: Quote: Tigger wrote: [quote] I'm afraid you somehow misread the definition... You need to look up agreement, not press release and then realize that you not I are the one confused here.

Well, you claimed that a press release by definition is an agreement.
For me that means I have to look up "press release" - and that`s what I did.

If you mean it the other way round, you should write it that way - I`m not so good at mind reading, you know...

Quote:

Tigger wrote: ... Quote: I asked a clear question and would like to have an clear answer to it: Is "the developers not being paid" subject to the proceedings latterly - "Yes" or "No"? ...I can't give you a clear answer...

To be honest I didn`t expect a clear answer from you here.

You should become a politician - given the way you avoid clear answers...


Quote:

Tigger wrote: Quote: Why do you think I have to tell the people what they already (should) know? ... but Ai is supposed to know that really they are done?

Had they followed the news on the Amiga related media they had known when A1/Os4 started selling to end users.

I`m afraid they will have a hard time claiming they believed all those sales were to developers...

Quote:

Tigger wrote: ... Because you think that Hyperion can claim anytime was the start of the 6 months and that Amino should just know they were done then and the 6 months timetable was started. Quote: Drop the "just" and I agree entirely that I think so. Which means you believe that Hyperion can claim they were done on May 3, 2002, ie 6 months from when they signed the contract.

Yeah - you`re right - I misread your writing.
I read something along the lines of they could claim that this "was the start of the 6 months and that Amino should just know they were done...".

My fault - sorry...

Quote:

Tigger wrote: Quote: No - I believe that it is s not really a sign of competence to send receipts for the incorrect amount. It should not, but can happen... ... Itec should be punished for that.

Yeah - and AminoAInc and and KMOSAInc as well. Send all the gangsters to prison!



Quote:

Tigger wrote: ... Quote: I'm highly doubting that it matters at a court in the US what Hyperion (a Europe based Company) appoints with it's developers in Europe regarding the point in time they pay them. Since it already been mentioned twice during the docs we've seen so far, I would strongly disagree with your assessment.

So we agree to disagree strongly here...

Quote:

Tigger wrote: Quote: I'd say this falls into the same category as continuing OS4 sales: its nothing that can't be compensated with money later, as you already repeatedly pointed out... Since its one of the reasons for cancellation, it will do more then get them money.

As it has been repeatedly shown by several people here, it first remains to be seen if they had a right to cancel the 2001 agreement at all...

Quote:

Tigger wrote: Quote: And you really belive all you need to know is in there and that the author is in the position to decide what you need to know and what not? I hate to tell you this, but every native English speaking person is laughing and rolling on the floor now. Law 101 isnt a book in that context..

Have fun!

I`m basically quite humorous and wanted to avoid that its getting too serious here...

The book on amazon just was the first hit when I googled for it...

But don`t you think its rather blond and blue-eyed to think every European - including the Britons - knows what "law 101" in the US is?

Aren`t you overestimating the importance of your nation for the avarage European here?

I will read the new court docs now and come back tomorrow...

Last edited by Dandy on 20-Feb-2008 at 08:51 PM.
Last edited by Dandy on 20-Feb-2008 at 08:46 PM.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @Lou Quote: Lou wrote: Perhaps then they should receive their money in return and call it a day. If we are to believe Hyperions done in Dec 2004 story, they should have sent the money back in June or July of 2005, instead in 2006 they asked for more money, which further hurts there case with the buyback issue.

They could call for interest, if it`s appointed this way...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Hey Tig, currently its a topic here in the German news that Franjo Poth (husband of Verona Feldbusch-Poth, German female entertainer) possibly delayed filing for insolvency for his company - that`s an "element of a crime" here in German legal system and so the State Attorney is investigating him.


Isn`t there something similar in US law?
If so, I`d say AInc might experience a deep disappointment in the end...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

Isn`t there something similar in US law?

No.

Dammy

_________________
Dammy

@umisef

Quote:

Taking a clause which says "If Amiga elects not to buy the extra work you have done to add to Amiga's IP, then you shall retain ownership of that extra work" and presenting it to a judge (who presumably is reasonably literate) as the reason why you think that you somehow own the combined work outright is pushing it already

Yes, I was also surprised when I read this part.
However, it is a reason pushed by Hyperion. Even if this one is denied, the other ones might make it (?)
I think that Hyperion, like Amiga Inc., is bringing the most they can in order to have the best chances to get the least they want.

Quote:

So either Kinsell is having a very bad day (or possibly, Kinsell submitted documents prepared by Ben on a very bad day), or they have pretty much given up on having any credibility...

Or maybe he understands something we don't on how the laws relating to trademark rule ?

@AmigaPhil

Thanks very much for posting links to the updated documents and for the summary. - Lars

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@Dandy

Quote:

Dandy wrote: You have your beliefs and I have mine. In the end we will see who was closer to reality.

You said Olaf said something in the court documents, he didnt say that, so its not my belief vs your belief, its my fact (Olaf didnt say that) vs your fabrication (Olaf said he let them use the CVS).

Quote:

White hats - like the kukluxclan people? Nahhhh - I don`t think so... And I don`t think McBill is evil by default either - its just that he scammed me and therefor I don`t trust him anymore.

No Western reference, good guys wear white hats, bad guys wear black hats. Bill scammed alot of people, again whether he scammed people has nothing to do with legally whose right here, thats something you dont seem to understand, Hyperion scammed all the developers, that doesnt seem to bother you.

Quote:

And I wholeheartedly whish you`re wrong here and US law does not honour/support their scams.

There scams have nothing to do with this case, they surely wont influence the result of this case.

Quote:

Well, you claimed that a press release by definition is an agreement. For me that means I have to look up "press release" - and that`s what I did. If you mean it the other way round, you should write it that way - I`m not so good at mind reading, you know...

No, I said a joint press release is by definition an agreement, I stand by that, you need to understand what an agreement is and understand what a joint press release is, to understand that is a correct statement.


Your question

"Is "the developers not being paid" subject to the proceedings latterly - "Yes"
or "No" "

makes no sense in English, I dont mind answering the question, I just dont see a question that makes sense. You might as well have asked me what does purple taste like? Are you sure latterly is the word you were looking for?

Quote:

Had they followed the news on the Amiga related media they had known when A1/Os4 started selling to end users. I`m afraid they will have a hard time claiming they believed all those sales were to developers...

Total sales were less then 1000 units, they only received money from Eyetech and even your example CD says pre-release all this while Hyperion continued to say that it was a pre-release and 4.0 was NOT done yet.

Quote:

Yeah - and AminoAInc and and KMOSAInc as well. Send all the gangsters to prison!

See thats the problem with you on this, you dont care what the law says, you want your pound of flesh from AI whether they are legally right or wrong.
-Tig

_________________
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: Or maybe he understands something we don't on how the laws relating to trademark rule ?

No, if this proves anything, it proves whoever wrote this doesnt understand trademarks. Since we have AI(D) owning 1401045, 2319266, 2802748, as well as 2369059, 75642361 and probably most importantly 73571532, this entire arguement over trademarks is worthless to Hyperion. Read document 60 and 61 to have a better idea what is going on. Four of the Five new trademarks are based, on one of the ones listed above with addons to it, only the owner of the Amiga trademark is going to be able to use these, its like a coca-cola subsidiary trying to get possession of the trademark Coke-Five, it wouldnt work for them, it won't work for Hyperion. Since KMOS/AI(D) is the legal owner of AMIGA as a name for computers and computer products, Hyperions opposition has to be based on them using Amiga before the previous owners of 1401045 (ie Amiga Inc Los Gatos in 1985) which given they were formed in 1999 will be fairly hard to prove. As for the boing ball trademark, its pretty easy to prove that as an unofficial logo of the Amiga computer dating back before the creation of Hyperion in 1999, Amiga.org for example has been using it in its logo since the Escom days. so Hyperions claim of first use is ludicrous.
-Tig

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

Time for the decision of the court???

@Dandy

Quote:

Had they followed the news on the Amiga related media they had known when A1/Os4 started selling to end users.

Ah, that would be in November 2007, then, right?

Or are you thinking of sometime in 2002, when the first *promises* of an *OEM version* were sold to end users by an OEM?

Or are you thinking of mid 2004, when Hyperion started shipping CDs with a developer prerelease to fourth-party dealers which the third-party OEM then claimed was what was promised, despite the fact that even Hyperion now claims it was incomplete?

Or are you thinking of end 2004, when Hyperion made available a free-for-the-download upgrade to the developer pre-release which was only accessible to those who had bought the promise of an OEM version earlier?

Or maybe end of 2006, when the "final update" to the developer pre-release was released, only to be followed by the presumedly even-more-final update in July 2007?

Tell us, when do *you* think "OS4" started selling to end users?

Quote:

But don`t you think its rather blond and blue-eyed to think every European - including the Britons - knows what "law 101" in the US is?

The naming conventions for university courses are pretty much the same across the English-speaking world, as they all derive from colonial times. The first '1' is the year (so "Law 101" is a first year course), and the remainder identifies which course, with lower-numbered ones typically more elementary, higher numbered ones more specialised. Thus "XYZ 101" is the most basic course about subject XYZ in the first year of study. In short, the fundamentals.


Quote:

I`m afraid they will have a hard time claiming they believed all those sales were to developers...

Why? Amiga(W) sold 3000 Amiga-DE SDKs, and claimed that Amiga DE had 3000 developers. Hyperion ships 1000 Developer Prereleases, it's not unreasonable to think that they shipped them (indirectly) to 1000 developers. Especially considering that Amiga's out-of-touchness with the reality of the Amiga marketplace is well documented....

Another part (from doc #99) I find interesting regarding ower discussion about "Is 'Amiga One Partners' a (legal) partnership ," (See post #184) is this one:

Quote:

Indeed, one has to wonder if Amiga Delaware is truly serious about its contention that “Amiga One Partners” is a separate legal entity, for that result makes the “partnership” the actual contracting party in the 3 November 2001 Agreement, and that in turn has obvious implications for plaintiff’s claims against Hyperion: A partner is not a co-owner of partnership property and has no interest in partnership property which can be transferred, either voluntarily or involuntarily. RCW 25.05.200. Put simply, if Amiga Delaware is right, then Hyperion could not transfer OS 4.0 to it under any circumstances, even if plaintiff ultimately won this suit.

Last edited by AmigaPhil on 21-Feb-2008 at 01:13 AM.

@Tigger

Quote:

Since we have AI(D) owning 1401045, 2319266, 2802748, as well as 2369059, 75642361 and probably most importantly 73571532, this entire arguement over trademarks is worthless to Hyperion.

Those are temporary (serial) numbers. AInc. (D) is not yet granted any registered numbers.

Quote:

Since KMOS/AI(D) is the legal owner of AMIGA as a name for computers and computer products

Is it ? Really ?

Quote:

As for the boing ball trademark, its pretty easy to prove that as an unofficial logo of the Amiga computer dating back before the creation of Hyperion in 1999, Amiga.org for example has been using it in its logo since the Escom days. so Hyperions claim of first use is ludicrous.

I don't know if Hyperion pretend to be the first user of the " Boing Ball" or not, but I wonder too how they can now claim to be THE legit owner of it.

@AmigaPhil

Quote:

However, it is a reason pushed by Hyperion. Even if this one is denied, the other ones might make it (?)

It is the only reason for owning AmigaOS. And it's such a ludicrous reason....

Quote:

Or maybe he understands something we don't on how the laws relating to trademark rule ?

If he does, he should have mentioned it --- not for our benefit, but for that of the judge. Going by the cases on his calendar, The Honourable Ricardo S Martinez is not a trademark law expert any more than any of us (in fact, this Friday, he is going to put away Jimmy Hendrix for illegal possession of a Smith and Wesson, and most of his cases appear to be criminal rather than civil :)

@AmigaPhil

Quote:

Put simply, if Amiga Delaware is right, then Hyperion could not transfer OS 4.0 to it under any circumstances, even if plaintiff ultimately won this suit.

Which is a load of bull, because the transfer obligation is not on "The AmigaOne Partners", but on Hyperion. There is nothing in the contract that ever treats Hyperion's work as "partnership property", because it simply is not.

Every single clause which talks about the OS4 work talks about Hyperion; Every single clause which talks about the license to OS3.x and the "AmigaOS" trademark talks about "AmigaOne partners"

This seems to be nothing more than another attempt at obfuscation. The license is partnership property, because it was granted to the partnership. Hyperion's work is Hyperion's property, because it was done by Hyperion (or contracted out by Hyperion, as the case may be, and the property may still be with the original authors because Hyperion may have been less than forthcoming with promised payments.... but that's beside the point).
Again, anybody reasonably literate who reads the contract twice can see that Hyperion's arguments are getting rather, uhm, "audacious"....

@umisef

Quote:

It is the only reason for owning AmigaOS.

Really ? Well, I don't know. But I find the other arguments more valuable.

Quote:

(in fact, this Friday, he [the judge] is going to put away Jimmy Hendrix for illegal possession of a Smith and Wesson, and most of his cases appear to be criminal rather than civil :)

@umisef

Quote:

This seems to be nothing more than another attempt at obfuscation.

Well, if it is, they are playing the same game AInc. is doing.

Quote:

The license is partnership property, because it was granted to the partnership.

If there is indeed a (legal) partnership. (I don't believe there is.)

Quote:

Again, anybody reasonably literate who reads the contract twice can see that Hyperion's arguments are getting rather, uhm, "audacious"....

I partly agree. But then again, check out the arguments from AInc. and qualify them...

@umisef

Quote:

Again, anybody reasonably literate who reads the contract twice can see that Hyperion's arguments are getting rather, uhm, "audacious"....

I especially like the part in the response, Document #99, Section C, pg 3, lines 22-26 where Kinsel writes that Hyperion is the Successor or Assign(ee) of the trademarks, then claims proof by immediately following that claim with section 2.07 of the 2001 contract that clearly states that

Quote:

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

(emphasis mine)

The judge is going to wonder why his law clerk is laughing so hard.

_________________
Tony T.

People who generalize are always wrong.


1989 - 500 / 1991 - 3000 / 1997 - Genesis Flyer 1200T / 2003 - A1XE

@AmigaPhil

Quote:

Quote: The license is partnership property, because it was granted to the partnership. If there is indeed a (legal) partnership. (I don't believe there is.)

I don't believe a "legal" partnership is necessary.

I see this as Amiga Inc granting a license to both Hyperion and Eyetech to use "AmigaOS4", but only if they use it together. However, later actions by AInc seemed to show them not caring about Hyperion using it by themselves.

_________________
Tony T.

People who generalize are always wrong.


1989 - 500 / 1991 - 3000 / 1997 - Genesis Flyer 1200T / 2003 - A1XE

@AmigaPhil

Quote:

Quote: It is the only reason for owning AmigaOS. Really ? Well, I don't know. But I find the other arguments more valuable.

What other arguments are there?

There are plenty of arguments for Hyperion owning *their work*[1]. There are none whatsoever that I can see for Hyperion owning "AmigaOS 4.0", which is a combination of that work and the pre-existing IP. That IP used to be owned by someone other than Hyperion, and so far, I have not seen any mechanism being put forward by which ownership may have been transferred to Hyperion[2].

[1]: Where "their work" includes work they contracted out and paid for.
[2]: Or to the AmigaOne Partners, for that matter.