@Tigger

Quote:

Not that big a maze, in fact after a reexamination, all 5 that Hyperion are opposing are all based on previous amiga trademarks that are currently owned by KMOS aka AI(D).

Thanks for your interesting explanation. (It is helping me to find the way out of the maze )

So, if I understand correctly, regardless the opposition from Hyperion, AInc(D) IS the registered owner of the 3 (active) trademarks you mentioned.

Quote:

Hyperion is violating there three Trademarks

I don't think so:

- Hyperion has not produced any "computers, computer disk drives, ram expansion cartridges, computer monitors or computer modems" with the word "Amiga" as a name (RN #1401045);
- Hyperion has not used the Amiga logo/name on "computer magazines"(RN #2319266);
- and, IIRC, Hyperion has not used the "Powered by Amiga" logo on "computers, computer peripherals, or computer operating systems" (RN #2369059).

Quote:

there opposition is going to fail, because all 5 of the new ones, are derivatives of Trademarks already owned by KMOS(AI(D))

Not so sure.
Those are OTHER applications. I don't think there can be inter-dependencies between several registered trademarks (granted to different registrants). As I read it, the new applications are supposed to replace the "previous" registered trademarks as soon as they are effectively accepted (registered).

Also, I don't think the "Boing Ball" can become de facto a registered trademark just because something looking like this appears on the "Powered by Amiga" logo. On the opposite, if the "Boing Ball" was previously granted a registration number, the "Powered by Amiga" logo would then be denied such registration.

@AmigaPhil

Quote:

AmigaPhil wrote: So, if I understand correctly, regardless the opposition from Hyperion, AInc(D) IS the registered owner of the 3 (active) trademarks you mentioned.

Absolutely.

Quote:

Quote: Hyperion is violating there three Trademarks I don't think so: - Hyperion has not produced any "computers, computer disk drives, ram expansion cartridges, computer monitors or computer modems" with the word "Amiga" as a name (RN #1401045);

Oh I absolutely know so.
Hyperion has used the word Amiga as attributed to computer products, its owned by AI(D), they are violating there trademark, pure and simple, if that wasnt true, they wouldnt have needed a license to use the trademark as part of the contract, they could have just used the trademark without the license.

Quote:

Quote: there opposition is going to fail, because all 5 of the new ones, are derivatives of Trademarks already owned by KMOS(AI(D)) Not so sure.

Again I am very sure.

Quote:

Those are OTHER applications. I don't think there can be inter-dependencies between several registered trademarks (granted to different registrants). As I read it, the new applications are supposed to replace the "previous" registered trademarks as soon as they are effectively accepted (registered).

They are new applications, they arent replacements they are for new uses. This is the Coca Cola company who already owns the trademark for Coke, having a bottling company opposing them for a new softdrink called Coke Zero, Diet Coke or a new Coca Cola logo, if you have a very good case you might make it so noone can have the trademark, but you will never win a derivative trademark mark like this when you dont own the primary one. It wouldnt have worked then for Bens Crazy Bottling company, its not going to work now for Hyperion. I mean two of the 5 they are opposing are derivations of the Powered by Amiga logo which KMOS does indeed own.

Quote:

Also, I don't think the "Boing Ball" can become de facto a registered trademark just because something looking like this appears on the "Powered by Amiga" logo. On the opposite, if the "Boing Ball" was previously granted a registration number, the "Powered by Amiga" logo would then be denied such registration.

Actually that shows prior art, prior art that is owned by KMOS who is applying for the new Trademark. Prior art that was trademarked before Hyperion existed, which makes it impossible for Hyperion to show that they used it first.
-Tig

Last edited by Tigger on 23-Feb-2008 at 05:04 AM.

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Is this some Interestings?


CourtDoc

I's maybee old stuff...

Last edited by linnar on 23-Feb-2008 at 12:32 PM.

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@Dandy

Quote:

Dandy wrote: @samface Quote: samface wrote: @Dandy ... Well, to be honest, I believe Umisef asked for an idication that they would have had access, not an indication that they should have had access. See the difference? If the Agreement says "should have access" this indicates (not prooves!) they might have (had) access.

Nope, it's only an indication that they *should* have had access, nothing else.

Quote:

See the difference or still having problems understanding that (-> English 101)?

Again, all you have is an indication that they agreed to give access which is far from the same thing as an indication of what actually happened.

Like in my example earlier, this is like determining the speed of a car by the nearest speed limit sign. What should be true isn't an indication of what is true. An indication is a symptom of the truth, the speed limit sign beside the road isn't a symptom of the car's speed. In the same manner, the agreement between Amiga Inc. and Hyperion isn't a symptom of wether it was honoured or not.

Last edited by samface on 23-Feb-2008 at 01:29 PM.
Last edited by samface on 23-Feb-2008 at 01:27 PM.

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@Tigger

Quote:

Hyperion has used the word Amiga as attributed to computer products, its owned by AI(D), they are violating there trademark

Hyperion has produced SOFTWARE (operating system). Unlike the pending (opposed) SN #78940417, RN #1401045 does not cover software products.

(BTW, EYETECH did the hardware - Amiga One. Could this bring us back to the question: "Wasn't it up to AInc. to join Eyetech to the suit ?" )

As a side note, I find it funny that, as a proof of continual use of RN #1401045 (Section 8), Reed Smith has supplied in 2006 a (old) photography of a modem package.


Quote:

They are new applications, they arent replacements they are for new uses.

Ok, but then, don't you think that the new registration applications make the older registered trademarks redundant ? I mean, compare what would SN #78940417 cover with RN #1401045 ...
Wouldn't there be some sort of "double use" if RN #1401045 was still active when SN #78940417 gets its registration granted ?


Quote:

I mean two of the 5 they are opposing are derivations of the Powered by Amiga logo which KMOS does indeed own. [ ... ] Actually that shows prior art, prior art that is owned by KMOS who is applying for the new Trademark.

Let's say a "earth symbol" was used instead of a "Boing Ball" to build the "Powered by Amiga" logo (why not ?). Do you think that this will automatically grant AInc. a registered trademark over the "earth symbol" ? (The "Powered by Amiga" logo is an original construction, the "earth symbol" is not and is already too widely used.)


Quote:

Prior art that was trademarked before Hyperion existed, which makes it impossible for Hyperion to show that they used it first.

I don't think Hyperion pretend to be the first to use the "Boing Ball". I'm not even sure they want it for themselve as a registered trademark. That's not why they are opposing this filling (see post #236).

@linnar

Quote:

Is this some Interestings? CourtDoc I's maybee old stuff...

It is...
We already know the decision of the judge [ to grant Itec the motion to dissmiss or transfer ... ] since about mid-January. See the very first message of this thread.

@AmigaPhil

Quote:

It is... We already know the decision of the judge [ to grant Itec the motion to dissmiss or transfer ... ] since about mid-January. See the very first message of this thread.

OK!

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@AmigaPhil

Quote:

AmigaPhil wrote: Hyperion has produced SOFTWARE (operating system). Unlike the pending (opposed) SN #78940417, RN #1401045 does not cover software products.

Actually it does, computers back in 86 covered hardware and software, only in recent times have we made a distinction and even now, they are considered the same field and you wouldnt be allowed a trademark, without owning the primary. Do you think I could get a trademark for a computer (hardware) named Windows Vista? No, and Hyperion cant use Amiga as an OS name claiming the root Amiga computer Trademark doesnt cover it.

Quote:

(BTW, EYETECH did the hardware - Amiga One. Could this bring us back to the question: "Wasn't it up to AInc. to join Eyetech to the suit ?" )

Yes and Eyetech paid a fee to do that, again, Eyetech didnt violate the contract, Hyperion did, Eyetechs portion of the contract wasnt cancelled, Hyperions was.

Quote:

As a side note, I find it funny that, as a proof of continual use of RN #1401045 (Section 8), Reed Smith has supplied in 2006 a (old) photography of a modem package.

The renewal was done in 2006, so I'm not sure what you point is, and I dont know where you are pointing to that is Section 8.



Quote:

Ok, but then, don't you think that the new registration applications make the older registered trademarks redundant ? I mean, compare what would SN #78940417 cover with RN #1401045 ... Wouldn't there be some sort of "double use" if RN #1401045 was still active when SN #78940417 gets its registration granted ?

No, as I said earlier, search for Coke, and look how many Coke Trademarks are owned by the Coca-Cola company.

Quote:

Quote: Actually that shows prior art, prior art that is owned by KMOS who is applying for the new Trademark. Let's say a "earth symbol" was used instead of a "Boing Ball" to build the "Powered by Amiga" logo (why not ?). Do you think that this will automatically grant AInc. a registered trademark over the "earth symbol" ? (The "Powered by Amiga" logo is an original construction, the "earth symbol" is not and is already too widely used.)

No, but then the Earth symbol hasnt been used as an Amiga symbol since 1985 and is generic enough it cant be trademarked, and the Powered By Amiga doesnt include an Earth Symbol, if it had its extemely likely it would have had a comment like the one about Enabled on the Amiga Enabled application. Understand as far as the USPTO is concerned the Trademark should be granted, Hyperions opposition needs to be based on them having a better claim or able to prove that its so widely spread other uses that it will confuse a majority of the people to grant the trademark. That has no chance of working on the 4 with Amiga in them as the current owner of the Amiga Trademark with regard to Computer and Computer Equipment is the one applying for the new Trademarks, and as far as the Boing Ball, its never been applied for before, its a unique portion of one of their current trademarks and the oppositions examples all date from after the prior art shown by AI.
-Tig

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@linnar

Quote:

linnar wrote: @AmigaPhil Quote: It is... We already know the decision of the judge [ to grant Itec the motion to dissmiss or transfer ... ] since about mid-January. See the very first message of this thread. OK!

But thanks anyway for the link to the article.

@Tigger

Quote:

Actually it does, computers back in 86 covered hardware and software, only in recent times have we made a distinction and even now, they are considered the same field and you wouldnt be allowed a trademark, without owning the primary.

Ok. For the moment, I take it you are right on this.

Quote:

Quote: As a side note, I find it funny that, as a proof of continual use of RN #1401045 (Section 8), Reed Smith has supplied in 2006 a (old) photography of a modem package. The renewal was done in 2006, so I'm not sure what you point is, and I dont know where you are pointing to that is Section 8.

Search on the TARR database for that RN. On the result page, click on "documents retrieval", then on "PR-Section 8 and 9".


Quote:

[ about the "Boing Ball" ]

I'm still not convinced here, but I suggest we hold this discussion until something happen on the USPTO (like new publications about the opposition).

@Tigger

Quote:

You keep trying to get us farther and farther from the original argument. In message #378 you said AI was coming up with a new story, that the contract had been abandoned in 2004, yet here we have evidence from 2004 that shows they believed the contract had been abandoned then, so surely you cant still be arguing its a new story, its a story they told back in 2004.

There is no evidence from 2004 which shows that the parties considered the 2001 contract to be abandoned. There is evidence showing that McEwen was trying to negotiate a new contract, which we know did not happen. I hope you're able differentiate between intending to do something and actually doing it. On the other hand we have AD(KMOS) cancelling the 2001 contract in 2006. Now that is evidence that they considered the 2001 contract to be still valid in 2006, you don't cancel a contract that's been abandoned years ago and no longer in force.

Quote:

Except they didnt, they should have sent that back in response to the Nov 2006 letter, they didnt

First of all how do you know they did not respond to the 2006 letter saying they do not accept the cancellation? It's evident from the fact that they continued to develop OS4 and make releases, that they did not accept KMOS's cancellation of the contract.

@COBRA

Quote:

COBRA wrote: There is no evidence from 2004 which shows that the parties considered the 2001 contract to be abandoned. There is evidence showing that McEwen was trying to negotiate a new contract, which we know did not happen. I hope you're able differentiate between intending to do something and actually doing it. On the other hand we have AD(KMOS) cancelling the 2001 contract in 2006. Now that is evidence that they considered the 2001 contract to be still valid in 2006, you don't cancel a contract that's been abandoned years ago and no longer in force.

The Feb 9, 2004 letter says "As of right now there is no contract in place for the distribution of the operating system with KMOS the owners of the product. " Thats pretty good evidence in my book, did you forget it said that?

Quote:

First of all how do you know they did not respond to the 2006 letter saying they do not accept the cancellation? It's evident from the fact that they continued to develop OS4 and make releases, that they did not accept KMOS's cancellation of the contract.

Because once again, AI said they received no response and Hyperion has not said that is a fallacy, so as far as the court is concerned, until Hyperion says (and probably proves) otherwise, they did not respond in the 30 day timeframe as required under the 2001 contract.
-Tig

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@AmigaPhil

Quote:

AmigaPhil wrote: Quote: [ about the "Boing Ball" ] I'm still not convinced here, but I suggest we hold this discussion until something happen on the USPTO (like new publications about the opposition).

Actually it appears the UPSTO issue is likely to be resolved even before the Itec issue, though once again Itec seems to be working delaying tactics. I have a question to all, why exactly does everyone think Hyperion is trying to drag out the trials as they continually seem to be seeking to do?
-Tig

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@Tigger

Quote:

I have a question to all, why exactly does everyone think Hyperion is trying to drag out the trials as they continually seem to be seeking to do? -Tig

Simple, delay equals a chance to get out of this mess with some kind of deal (equaling life), and court equals DEATH. Hyperion's hand is not that solid . . .

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@AmigaPhil

Quote:

AmigaPhil wrote: I don't think Hyperion pretend to be the first to use the "Boing Ball". I'm not even sure they want it for themselve as a registered trademark. That's not why they are opposing this filling (see post #236).

Actually document 100, page 20, #49 says they used it first and thus its there trademark, so I dont think your point is correct, they are indeed claiming it, despite AI(D) owning a trademark that clearly has a boing ball in it, which dates from 1997.
-Tig

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@Dandy

Quote:

Hmmmmm - I read the entire Attachment 8 of PDF #26, but could not find any mention that AInc had no access to the CVS.

You mean the sentence "Hey, wait a minute --- my work has not been paid for, and I am not going to give it away for free" somehow escaped your attention? Or did you fail to grasp that this meant that Olaf was not going to let AI have access to the stuff (even if only in the sense of "dump it on a CD and send it to Hyperion, please")?

Combine this with knowledge about continued lack of payment, which can also be derived from the court docs, and you have one pretty strong indication that Amiga Inc did not have access to the CVS.

Similarly, you have the 2004 email from McBill of AI(W), which said "we paid for it, yet we have not received the code". Obviously, even if (as you postulate) AI(W) had access, they were not aware of it, so even *if* such access existed (unlikely, see above), being unaware of it AI/KMOS could not have used it to work out many months *after* McBill's email whether Hyperion was "done" or not.

Quote:

Well, the "Design Goals of OS 4" I cited are part of/attached to the 2001 Agreement. And of course AInc was undeniable party to this agreement.

However, it was merely *attached to* the agreement; Thus the use of the word "parties" does no more refer to the agreement's parties than the sentence "Olaf Barthel will function as the build master" does compel Olaf to do anything.
Put bluntly, Hans-Joerg, as he so often points out, has nothing to do with the corporate dealings of Hyperion; He is but a technical lackey... Thus when he talks about "involved parties", he talks about people involved in the technical development.
If "parties" referred to the same parties as in the main contract, then how the heck did Hans-Joerg ever get access?


Quote:

I think what you mean is that they were not party of the development team - and that's right.

Precisely. So your "indication that they had access to the CVS" just evaporated, because access to the CVS was a desired feature for parties to the development team, which you yourself say AI were not.

@Tigger

Quote:

The Feb 9, 2004 letter says "As of right now there is no contract in place for the distribution of the operating system with KMOS the owners of the product. " Thats pretty good evidence in my book, did you forget it said that?

That's pretty good evidence that the disputes regarding ownership of OS4 already started back then. It's certainly not showing that the parties abandoned the 2001 contract, again, KMOS saying in 2004 that they want to honor the 2001 contract, and then them cancelling it in 2006 is clear indication that they did not consider it to have been abandoned in 2006, but if you want to keep ignoring the facts, suit yourself.

Quote:

Because once again, AI said they received no response and Hyperion has not said that is a fallacy, so as far as the court is concerned, until Hyperion says (and probably proves) otherwise, they did not respond in the 30 day timeframe as required under the 2001 contract.

Look Tig, I know you really dislike Hyperion and those who run it and you'll entertain any idea that allows you to feed your feelings towards them, but thinking that they wouldn't even respond to a letter of termination requires a large dose of naivity. The same goes for their latest story of the 2001 contract being abandoned, you have to live in some kind of fairy land to believe that (and that McEwen made an honest mistake in his previous declarations), when their previous actions prove the exact opposite.

@COBRA

Well there ain't such an reply in the court docs, which means either:

- it doesn't exist
- Hyperion are holding it back for one reason or another, something that might not go well with the judge if they file it now.

About the contract being abandoned, canceling it 2 years later doesn't proove anything except AInc wanting to make a clean cut on a previously muddy aspect.

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@COBRA

Quote:

That's pretty good evidence that the disputes regarding ownership of OS4 already started back then. It's certainly not showing that the parties abandoned the 2001 contract, again, KMOS saying in 2004 that they want to honor the 2001 contract, and then them cancelling it in 2006 is clear indication that they did not consider it to have been abandoned in 2006, but if you want to keep ignoring the facts, suit yourself.

Funny, what I got out of that joint press release was they were going to abide by the original terms, not the original contract. Original terms called for 30 day notification that could lead to arbitration.

Quote:

Look Tig, I know you really dislike Hyperion and those who run it and you'll entertain any idea that allows you to feed your feelings towards them, but thinking that they wouldn't even respond to a letter of termination requires a large dose of naivity.

What your missing is that there is someone who is highly biased opinion since it does impact them directly on which way the jury decides. It's not Tigger, he doesn't really care, it's YOU. You are the one who is so badly biased against AI and pro Hyperion. So shouldn't we discount your opinionated posts due to ultra high bias factor?

If I was a OS4 supporter, I'd be plenty ####ed at both AI and Hyperion for a completely botched project. The only people I wouldn't be ####ed at is those who coded OS4, the developers, since they have gotten SCREWED by both parties. Although, truth be told, if I was a OS4 supporter, I would be rooting for AI to win so the developers have some slim chance of being paid for their hard work. I can't see Evert ever being capable of paying them off.

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@Kronos

Quote:

Well there ain't such an reply in the court docs, which means either

Kronos, in court docs you only submit documents which are needed. If the judge decides that KMOS had legal right to terminate the contract, and he determines that Hyperion has indeed breached it, it doesn't matter how Hyperion responded to AD back then. Likewise, if the judge concludes that KMOS had no rights upon which they could have terminated the contract, it is also irrelevant what communication took place between AD and Hyperion at the time they terminated it, the termination will not be effective.