@Dandy
Quote:

Hmmmmm - what I read in the court document is: "This matter is before court for a ruling on plaintiff's motion to leave to file an amanded complaint." In the header of this page you can read: "AMIGA,INC., a Delaware corporation, Plaintiff, v. HYPERION VOF, a Belgium corporation, Defendant." So it should be clear that AInc's lawyers are the ones wanting the leave...

Now you are mixing two things up. Months ago, AI requested leave to amend there claim and in fact provided the amended claim, document 103 grants AI the right to amend the claim despite all the silly protests of Hyperion. Dandy and I are talking about document 102 where Kinsel (Hyperions lawyer) says he cant do any work on the Hyperion case from April 24 through May 30, which means we aren't likely to see anything more about this case until June sometime.
-Tig

Last edited by Tigger on 23-Apr-2008 at 03:03 PM.

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

@Benji

Quote:

Benji wrote: @AmigaBlitter At least the show hasnt been canned completely - the new season starts in June...

WIll it be Duck Season or Wabbit season ?

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

So Amino gets to adjust their claims because certain documents made liars out of them in their original claims...and they got denied a judgement they asked for in #98...

We knew Kinsel wasn't going to be around for a while now. I'm sure he does have other clients to tend to...

Why is everyone getting all up in arms?

@Lou

Quote:

Lou wrote: So Amino gets to adjust their claims because certain documents made liars out of them in their original claims...and they got denied a judgement they asked for in #98... We knew Kinsel wasn't going to be around for a while now. I'm sure he does have other clients to tend to... Why is everyone getting all up in arms?

Actually they didnt get denied a judgement they asked for in #98, since they get to amend there claims, the issues the judgement requested in #98 doesnt apply, so its not going to happen, after they file the new docs and after Hyperion has responded, they can ask for a judgement at that point if Hyperion reiterates the claims in question.
-Tig

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

@sicky & @ The Editor

A sad thing to see in print, although I know exactly what you guys mean

_________________
Fred Booth
========================================
A500, A600, A1200 c/w Mediator and 030
AmigaOne and OS4.1
Mac LCII, G4 Powermac running OSX + Amigakit and MorphOS 3.0
Dell Mini 10 Netbook running IcAros and AmigaForever+Amikit+AmigaSys
2006 Macb

@Derfs

Quote:

Derfs wrote: @Dandy Quote: Dandy wrote: @damocles Hmmmmm - what I read in the court document is: "This matter is before court for a ruling on plaintiff's motion to leave to file an amanded complaint." In the header of this page you can read: "AMIGA,INC., a Delaware corporation, Plaintiff, v. HYPERION VOF, a Belgium corporation, Defendant." So it should be clear that AInc's lawyers are the ones wanting the leave... i suggest you re-read it as you are wrong.

Really not sure why you think that.
In the sentence I quoted from document #103 I highlighted that part that designates
the party asking for motion to leave: It's the plaintiff!

Next I quoted the court doc's header to show who the plaintiff is: It's AMIGA, INC.! - and not Hyperion VOF/Kinsel, as Damocles claimed!

Quote:

Damocles wrote: @Dandy Kinsel is Hyperion's lawyer, he is the one wanting leave.

If you still think I got this wrong, please point me to the part where you think my logic is flawed.

Quote:

Derfs wrote: Amiga won the motion (as you stated its for leave to file an amanded complaint) and at the end state that defendants lawyer is unavailable.

They won something?
Must have missed that...

What I read was that they asked for a motion to leave and the judge granted it - nothing about winning or loosing anything...

Quote:

Derfs wrote: you can even see this in #102 where he states it himself!

Yes - iread it...

Quote:

Derfs wrote: if you miss a simple thing like this, what else do you misunderstand?

No need to become personally!
From my POV it remains to be seen who misunderstood what...

Last edited by Dandy on 25-Apr-2008 at 09:32 AM.
Last edited by Dandy on 25-Apr-2008 at 09:30 AM.

_________________
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: @Dandy Quote: Hmmmmm - what I read in the court document is: "This matter is before court for a ruling on plaintiff's motion to leave to file an amanded complaint." In the header of this page you can read: "AMIGA,INC., a Delaware corporation, Plaintiff, v. HYPERION VOF, a Belgium corporation, Defendant." So it should be clear that AInc's lawyers are the ones wanting the leave... Now you are mixing two things up.

Could please be a little bit more specific with what you think I'm mixing up?

I just tried to point out to Damocles that my understanding of court document #103 is that AInc and their lawyers are the party asking for motion to leave and not Hyperion/Kinsell, as Damocles claimed...

Quote:

Tigger wrote: Months ago, AI requested leave to amend there claim and in fact provided the amended claim, document 103 grants AI the right to amend the claim despite all the silly protests of Hyperion.

That's how I understood it:
AInc once requested leave to amend their claim, judge granted it, and in fact they provided the amended claim, now AInc once again requested leave to amend their claim annother time and judge granted it again in #103.

Quote:

Tigger wrote: Dandy and I are talking about document 102 ...

Are we?
I thought this was my first reply to you in this thread...

And btw, I am referring to doc #103...

_________________
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:

Really not sure why you think that. In the sentence I quoted from document #103 I highlighted that part that designates the party asking for motion to leave: It's the plaintiff! Next I quoted the court doc's header to show who the plaintiff is: It's AMIGA, INC.! - and not Hyperion VOF/Kinsel, as Damocles claimed!

I was replying to Mike about leave (physical leave or NoU) of a attorney from the court hearings, not AI's leave to amend their complaint which is creating the delay in the court hearings. I was not referring to AI's requested leave to amend their complaint.

#103, page two: Quote:

In light of defense counsel’s Notice of Unavailability (Dkt. # 102), defendant’s answer to the amended complaint shall not be due until June 13, 2008.

_________________
Dammy

@Lou

Quote:

Lou wrote: ... and they got denied a judgement they asked for in #98... ... Why is everyone getting all up in arms?

Yes, Lou - they asked for "dismissal of two of the Amended Counterclaims asserted by defendant Hyperion VOF" in court document #98 - but I could not find anything about "they got denied a judgement" in the subsequent docs up to 103...

What they got denied was a motion to quash a subpoena duces tecum - but that was in doc #97 - so it can't be related to the "dismissal of two of the Amended Counterclaims asserted by defendant Hyperion VOF" in court document #98, which came later...

_________________
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)

@damocles

Quote:

damocles wrote: @Dandy Quote: Really not sure why you think that. In the sentence I quoted from document #103 I highlighted that part that designates the party asking for motion to leave: It's the plaintiff! Next I quoted the court doc's header to show who the plaintiff is: It's AMIGA, INC.! - and not Hyperion VOF/Kinsel, as Damocles claimed! I was replying to Mike about leave (physical leave or NoU) of a attorney from the court hearings, not AI's leave to amend their complaint which is creating the delay in the court hearings. I was not referring to AI's requested leave to amend their complaint. Quote: #103, page two: In light of defense counsel’s Notice of Unavailability (Dkt. # 102), defendant’s answer to the amended complaint shall not be due until June 13, 2008.

I see.
Thanx for clearing up this misunderstanding!

_________________
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)

@TheDaddy Quote:

I just urge anyone who is unhappy with this situation to just move on and keep an eye on the Amiga front... Don't miss out on great games like WOW, D3, Q4, Crysis, HL2. Get yourself a pc with a decent graphics card and have fun, otherwise you'll just get as bitter and bitter, just like me!

Couldn't agree more!

Do some people really still *only* use Amigas? I think you would be getter very sad & bitter by now, if that was the case, and so probably leave in a huff like some have threatened to do...

Why not just put the whole Amiga thing on a back-burner, until things sort themselves out? Keep using Amigas where it makes sense, but get yourself a PC to run Ubuntu or Windows for the *other* stuff.

I know you're still using real Amigas, but WinUAE is another valid way to use your old Amiga apps. AROS is also looking quite usable these days, especially now there are *two* ways to run it under Windows! (I have yet to try making TCP/IP work under QEmu, but it is supposed to be possible.)

Last edited by ChrisH on 25-Apr-2008 at 04:19 PM.

_________________
Author of the PortablE programming language.
It is pitch black. You are likely to be eaten by a grue...

@Chuckt

Quote:

Well, look at the bright side. Maybe Solid State Drives will be perfected by then so we can have something decent by when and if Amiga ever comes out with new hardware. I was reading on another forum that their 5400 RPM laptop was faster than their SSD (Solid State Drive) because it took two days to write to it.

I can assure you, there are, and have been long ago, SSDs that blow the pants off of any mechanical drive. I have no clue what you're referring to, maybe a Wal-Mart drive? SSDs are awesome, they just take time to come down to consumer land and pricing.

_________________
Are we not done with the same silly arguments and flames yet??!

@Chuckt

Quote:

Chuckt wrote: @Rudei Quote: Rudei wrote: @Benji I give it to Xmas, then I'm out. Rude! Well, look at the bright side. Maybe Solid State Drives will be perfected by then so we can have something decent by when and if Amiga ever comes out with new hardware. I was reading on another forum that their 5400 RPM laptop was faster than their SSD (Solid State Drive) because it took two days to write to it.

SSDs are working just fine now. Apple Air introduced in January of this year isnt the first laptop with one, but its probably the most popular, they are fast, quiet and help on the battery drain in a laptop.
-Tig

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

Looks like Hyperion emerged as the winner...news just out!

_________________
AmigaOS 4.x Beta Tester - Classic Amiga enthusiast - http://www.hd-zone.com is my Amiga Blog, check it out!

@HammerD

Maybe you should be forgiven for thinking so, but Hyperion was always bind to the contract, and contract prohibiting Hyperion from acquiring, as result ownership can change without Hyperion can do anything about it, and this what happened, poor assumptions where made, about Hyperion’s exclusivity. And this where problem is and continues to be a problem.

Last edited by NutsAboutAmiga on 30-Mar-2023 at 07:18 PM.

_________________
http://lifeofliveforit.blogspot.no/
Facebook::LiveForIt Software for AmigaOS

@NutsAboutAmiga

You can read the (public) 12 page court filing, Hyperion won on all counts!

Last edited by HammerD on 30-Mar-2023 at 07:19 PM.

_________________
AmigaOS 4.x Beta Tester - Classic Amiga enthusiast - http://www.hd-zone.com is my Amiga Blog, check it out!

@geen_naam

I'm looking for the full text now, but the summary is:

Quote:

ORDER. Plaintiffs' Motion for Partial Summary Judgment (Dkt. #[100]) is DENIED. Hyperion's Motion for Summary Judgment (Dkt. #[105]) is GRANTED as to all Counts contained in the Second Amended Complaint and as to all Plaintiffs; Plaintiffs' claims in the Second Amended Complaint are DISMISSED. Plaintiffs' Motion for Leave to File and Supplemental Briefing (Dkt. #[133]) is DENIED as moot. Hyperion's Motion for Leave to File Answer to Plaintiff's Second Amended Complaint and Second Amended Counterclaims (Dkt. #[137]) is GRANTED. Hyperion is directed to immediately file the Amended Answer attached to its Motion. Signed by Judge Ricardo S. Martinez.

-- eliyahu

_________________
"Physical reality is consistent with universal laws. When the laws do not operate, there is no reality. All of this is unreal."

@geen_naam

Sorry I don't know how to attach it properly....here is the text though.

ORDER - 1
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
CLOANTO CORPORATION, et al.,
Plaintiffs,
v.
HYPERION ENTERTAINMENT CVBA,
Defendant.
Case No. C18-381 RSM
ORDER
I. INTRODUCTION
This matter comes before the Court on Plaintiffs Amiga, Inc. (“Amiga”), Itec, LLC
(“Itec”), and Amino Development Corporation (“Amino”)’s Motion for Partial Summary
Judgment (Dkt. #100), Defendant Hyperion Entertainment C.V.B.A. (“Hyperion”)’s Motion for
Summary Judgment (Dkt. #105), Plaintiffs’ Motion for Leave to File and Supplemental Briefing
(Dkt. #133), and Hyperion’s Motion for Leave to File Answer to Plaintiff’s Second Amended
Complaint and Second Amended Counterclaims (Dkt. #137). The Court has determined it can
rule on the motions without oral argument. For the reasons set forth below, the Court DENIES,
GRANTS, DENIES, and GRANTS the motions.
II. BACKGROUND
“Settlement agreements are designed to, and usually do, end litigation, not create it.” In
re City Equities Anaheim, Ltd., 22 F.3d 954, 957 (9th Cir. 1994). Since the 1980s, the parties to
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 1 of 12
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this lawsuit have been litigating ownership and licensing disputes related to the Amiga operating
system software, which was developed during the infancy of the personal computer age by
Commodore Business Machines (“Commodore”). Dkt. #106 ¶¶ 6–7. In a 2009 case before this
Court, Amiga, Inc. v. Hyperion VOF, No. CV07-0631 RSM, current Plaintiffs Amiga, Itec, and
Amino (collectively, the “Amiga Parties”) entered into a comprehensive Settlement Agreement
and Consent Order, which should have put to rest what can only be described as a tortured history
of litigation. Dkt. #106 ¶ 8; Dkt. #47 (“Second Amended Complaint”) ¶ 22. Yet, issues before
the Court then remain before the Court now.
The instant case was initiated on December 14, 2017, when Plaintiff Cloanto Corporation
(“Cloanto”) filed suit against Hyperion in the U.S. District Court for the Northern District of New
York alleging Hyperion exceeded the rights granted to it in the Settlement Agreement thereby
resulting in copyright and trademark infringement. The Amiga Parties were not parties to that
lawsuit. In response, on March 13, 2018, Hyperion sued the Amiga Parties and Cloanto in this
Court (Dkt. #1), and on the following day moved to dismiss or stay the New York lawsuit or
transfer it to the Western District of Washington. Shortly thereafter, Hyperion and Cloanto
stipulated to transfer the New York case to this Court. Both Cloanto and the Amiga parties
accuse Hyperion of material breaches of the Settlement Agreement as well as infringement of
Cloanto’s copyrights. Dkt. #47.
In November 2018, Plaintiffs created a new entity, C-A Acquisition Corporation (“C-A
Acquisition”), after the deadline for joining additional parties. Dkt. #61-1. C-A Acquisition and
Cloanto are both owned by the same person, Michele “Mike” Console Battilana. Dkt. #57-3
(“Battilana Declaration”), ¶ 2. On March 6, 2019, Plaintiffs filed an Amended Motion to Extend
Deadlines in Scheduling Order to Permit Plaintiffs to File a Third Amended Complaint seeking
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 2 of 12
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to add C-A Acquisition as a new party and add claims-based Plaintiffs’ transfer of rights to C-A
Acquisition. Dkt. #57. In related briefing, Plaintiffs explained that “C-A Acquisition acquired
all rights in the trademarks that are at issue in this case, including the right to sue and recover for
past infringements.” Dkt. #62 at 5. On April 8, 2019, the Court denied that motion finding a
lack of diligence on the part of Plaintiffs. Dkt. #65.
Prior to C-A Acquisition’s formation, Hyperion moved to dismiss Plaintiffs’ First Cause
of Action for breach of contract (as brought by Cloanto), Seventh Cause of Action under the
Lanham Act (brought by Cloanto), and Eighth Cause of Action for a declaration of trademark
ownership (brought by all Plaintiffs). Dkt. #52. On May 16, 2019, the Court granted in part and
denied in part Hyperion’s motion. Dkt. #69. Specifically, the Court dismissed the First Cause
of Action based on its finding that Cloanto was merely a “successor” and not a party to the
Settlement Agreement. Dkt. #69 at 4–6. The Court also dismissed the Seventh Cause of Action
because it agreed with Hyperion that Plaintiffs had not shown that Cloanto has standing to pursue
a claim for relief under the Lanham Act. Dkt. #69 at 7–8.
Hyperion and Plaintiffs have now brought their own motions for summary judgment.
Dkt. #100 (Plaintiffs’ Motion for Partial Summary Judgment); Dkt. #105 (Hyperion’s Motion for
Summary Judgment). Plaintiffs seek summary judgment on their First Cause of Action for
breach of contract and Eighth Cause of Action for unauthorized trademark use as a matter of law.
Dkt. #100. Hyperion seeks summary judgment against Plaintiffs on all counts of the Second
Amended Complaint. Dkt. #105. Each party opposes the other’s motion. Dkts. #107, 109.
Plaintiffs also bring a Motion for Leave to File and Supplemental Briefing (Dkt. #133)
and Hyperion brings a Motion for Leave to File Answer to Plaintiff’s Second Amended
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 3 of 12
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Complaint and Second Amended Counterclaims (Dkt. #137). Both motions are also opposed.
Dkts. #134, 138.
III. DISCUSSION
A. Summary Judgment Legal Standard
Summary judgment is proper only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of demonstrating the absence
of a genuine issue of fact for trial by “identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies this
burden, the opponent must set forth specific facts showing that there remains a genuine issue for
trial. Fed. R. Civ. P. 56(e).
A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is merely colorable or is not
significantly probative, summary judgment may not be granted. Id. at 249–50. It is not the
court’s function at the summary judgment stage to determine credibility or to decide the truth of
the matter. Id. Rather, “the evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
//
//
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 4 of 12
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B. Breach of Contract Claim (Count One)
Plaintiffs and Hyperion both seek summary judgment on the Amiga Parties’ breach of
contract claim (count one). Plaintiffs ask the Court to find that Hyperion breached the Settlement
Agreement entered into by Hyperion and the Amiga Parties in 2009, as matter of law, by (1)
filing applications and obtaining registration for 18 trademarks (see Dkt. #100 at 2–3); (2) using
the AMIGAOS word mark and Boing Ball Mark to commercialize, distribute and sell
subsequently modified versions of the AmigaOS 3.1 Agreement, including but not limited to
“AmigaOS 3.1.4”; (3) using KICKSTART and WORKBENCH to license, market, and sell
versions of the Amiga operating system prior to AmigaOS 3.1; and (4) using AMIGAOS,
POWERED BY AMIGAOS, and the Boing Ball Mark on notepads, stickers, posters, t-shirts,
plush balls, inflatable beach balls, and other merchandise. Dkt. #100 at 16–21. Plaintiffs argue
that the terms of the Settlement Agreement are unambiguous, and that Hyperion breached these
terms under Washington law. Id.
Hyperion argues that the Court need not reach the issue of whether it breached any terms
of the Settlement Agreement, because none of the Amiga Parties may sue Hyperion for material
breach of the Settlement Agreement in the first place. Dkt. #105 at 16. Hyperion points to the
Amiga Parties’ admission that “C-A Acquisition acquired all rights in the trademarks that are at
issue in this case, including the right to sue and recover for past infringements,” and that
“[a]ccordingly, Amiga, Inc., has relinquished those rights, and only C-A Acquisition, and
Cloanto may bring the trademark infringement and related trademark claims made in this action.”
Dkt. #62 at 5. Because the Court barred C-A Acquisition from joining this action as a party and
previously found Cloanto lacked standing to sue for breach of contract, Hyperion argues that no
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 5 of 12
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Plaintiff in this case continues to exist who can press a breach of settlement agreement cause of
action against Hyperion. Dkt. #105 at 16.
In response, Plaintiffs argue their admission that C-A Acquisition acquired all rights in
the subject trademarks, and that Cloanto acquired all rights in the subject copyrights, such that
“only C-A Acquisition and Cloanto can bring trademark and copyright infringement claims
asserted in this action” (Dkt. #62, 5:9-16, emphasis added) does not judicially estop the Amiga
Parties from proceeding on their contract claims. Dkt. #107 at 6. Plaintiffs clarify the foregoing
statement does not assert that C-A Acquisition and Cloanto acquired contractual rights. Id. Yet,
Plaintiffs ignore half of their admission—the full statement is as follows: that “C-A Acquisition
acquired all rights in the trademarks that are at issue in this case, including the right to sue and
recover for past infringements.” The Amiga Parties seek to do just that in their breach of contract
claim: sue and recover from past infringements of rights and trademarks at issue in this case,
which now—per Plaintiffs’ admission—have all been transferred to C-A Acquisition. See Dkt.
#100 at 16–17 (listing out the specific infringements underlying the Amiga Parties’ breach of
contract claim). The Amiga Parties therefore lack standing to bring their breach of contract claim
as a matter of law and the Court dismisses count one.
C. Copyright Claim and Claim for Integrity of Copyright Management Information
(Counts Two and Three)
Cloanto, alone, brings a copyright infringement claim (count two) and claim for integrity
of copyright management information (count three) against Hyperion. Dkt. #47 ¶¶ 55–71.
Cloanto brings its copyright infringement claim against Hyperion for “creat[ing], distribut[ing],
and [selling]…the ‘Infringing Products’” in violation of the Settlement Agreement and that
“Hyperion’s copying, offering for sale, distributing, and/or licensing the Infringing Products
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 6 of 12
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without Cloanto’s permission constitute copyright infringement under 17 U.S.C. § 501, et seq.”
Id. ¶¶ 56, 59. Cloanto then brings its claim for integrity of copyright management information
alleging that “[b]oth Amiga operating system 3.1 and Kickstart ROM version 3.1 included …
CMI …, and that “Hyperion removed the CMI from these works and replaced it with copyright
information that falsely identified Hyperion as the author and copyright holder,” and then “sold
Infringing Products.” Id. ¶¶ 65–67.
Hyperion argues that these claims constitute an “Amiga Prohibited Action” under the
Settlement Agreement that Cloanto is not authorized to raise. Dkt. #105 at 16–19. Under the
Successor/Acquirer Agreement, Cloanto, as the Acquirer, “covenants and agrees with Hyperion
Entertainment C.V.B.A. that Acquirer will comply with all obligations of the Amiga Parties
under the Settlement Agreement.” Dkt. #1-1 (“Settlement Agreement”), Ex. 3. One of those
obligations is the Non-Aggression Clause, which provides:
Non-Aggression. The Amiga Parties agree and covenant that they will not institute any
action, claim or proceeding anywhere in the world against Hyperion arising out of
Hyperion’s use, marketing, licensing, or sublicensing of the Software or AmigaOS 4 or
Hyperion’s use of the Licensed Marks in connection therewith (an “Amiga Prohibited
Action”), unless the challenged activity constitutes a material breach of this Agreement.
The Amiga Parties understand and acknowledge that this Agreement is an absolute
defense to any Amiga Prohibited Action brought against Hyperion by any Amiga Party,
by a successor to any Amiga Party, by a Purchaser or by a licensee and that, should any
Amiga Party, successor to any Amiga Party, Purchaser or licensee file an Amiga
Prohibited Action against Hyperion in the future, Hyperion will be entitled to an
unqualified order of dismissal…
Dkt. #1-1 ¶ 3 (emphasis added). Hyperion argues that Cloanto’s allegation underlying its
copyright infringement claim falls within the definition of an Amiga Prohibited Action because it
alleges “Hyperion continues to distribute, sell, or license some or all of the Infringing Products,”
and therefore Cloanto is barred from bringing this claim. Dkt. #105 at 19. Likewise, Hyperion
argues that Cloanto’s claim for integrity of copyright management information is an Amiga
Prohibited Action because it alleges “Hyperion … sold Infringing Products.” Id. at 20. While
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 7 of 12
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the Non-Aggression Clause makes an exception for “challenged activity constitute[ing] a
material breach of this Agreement,” Hyperion correctly argues that Colanto lacks standing to sue
for breach of the Settlement Agreement per this Court’s May 2019 Order. See Dkt. #69.
In response, Plaintiffs argue Hyperion’s reading of the Non-Aggression Clause is
illogical because “Hyperion’s position amounts to claiming that once the Amiga Parties sell their
trademarks and copyrights to successors, Hyperion is free to exceed the rights granted under the
Settlement Agreement and commit any act of infringement whatsoever.” Dkt. #107 at 13.
Hyperion responds it is not arguing that after having transferred their rights to a successor, the
Amiga Parties lack standing to enforce the Settlement Agreement as a matter of law—but that in
this particular instance they lack standing because of their admission, which was adopted by the
Court. Dkt. #112 at 13. The Court agrees that the issue here is that Plaintiffs have tied
themselves into a knot. The Court cannot change the facts before it or the parties’ admissions
and cannot reconstruct an unambiguous Settlement Agreement borne out of lengthy litigation.
As to Cloanto’s lack of standing to sue for material breach of the Settlement Agreement,
Plaintiffs refer to their earlier arguments the Court previously found unavailing. See Dkt. #107
at 12; Section II.B. Therefore, the Court finds that Cloanto’s claims for copyright infringement
and integrity of copyright management information are barred by the Non-Aggression Clause
and cannot fall within the material breach exception because Cloanto lacks standing. Counts two
and three are dismissed.
D. Trademark Claims (Counts 4 and 6)
The Amiga Parties (count 4) and Cloanto (count 6), separately bring common law
trademark claims against Hyperion. Dkt. #47 ¶¶ 72-81, 91-107. The Amiga Parties also bring
unfair competition and Lanham Act claims (count 5) for alleged trademark violations by
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Hyperion. Id. ¶¶ 82-90. In Plaintiffs’ opposition to Hyperion’s Motion for Summary
Judgment, they concede that because Cloanto assigned its application to Amiga Corporation
(formerly C-A Acquisition Corp.) on February 16, 2021, and the mark registered on February
16, 2021, Cloanto does not assert trademark rights in this action, and agrees that the Sixth
Cause of Action should be dismissed because the issue is moot. Dkt. #107 at 3.
Hyperion argues that the Amiga Parties’ common law and statutory trademark claims
must also be dismissed because Plaintiffs have conceded that the Amiga Parties have
relinquished its copyright and trademark rights and therefore lack standing. The Court agrees
and dismisses counts four, five, and six.
E. Declaratory Relief Regarding Foreign Trademarks (Count Eight)
The Court previously denied Hyperion’s Motion to Dismiss Plaintiffs’ Eighth Cause of
Action for declaratory relief. Dkt. #69 at 7–8. Plaintiffs’ Eighth Cause of Action seeks a
declaratory judgment finding that Hyperion’s acquisition of certain foreign trademarks violates the
Settlement Agreement, and that Hyperion must relinquish to Amiga or withdraw or cancel these
trademark applications and registrations. Dkt. #47 at 24–25. In its previous Order, the Court found
that “the [Settlement] Agreement, taken as a whole, could be interpreted as granting Hyperion the
right to use a narrow list of AMIGA trademarks, in such a way that the use by Hyperion of other
related AMIGA trademarks would be in violation of the Agreement” and that the Court “has
jurisdiction over the remaining contract claim between the Amiga Parties and Hyperion, and can
rule that Hyperion has breached that contract without ‘scrutiny of the administrative acts of
multiple foreign trademark officials.’” Dkt. #69 at 8 (citing Dkt. #52 at 10).
The briefing before the Court at that time did not address Plaintiffs’ admission as to the
Amiga Parties’ standing to bring any claim other than the claim for declaratory relief. Now
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however, the Court has found that the Amiga Parties lack standing to bring their breach of contract
claim, common law trademark claims, or statutory trademark claim as pled in light of Plaintiffs’
admission regarding the transfer of rights to C-A Acquisition.
Hyperion argues that as a result Cloanto is the only remaining Plaintiff with potential
standing to proceed on this claim. Dkt. #105 at 22. The Court agrees. Hyperion further argues
that Plaintiffs’ allegations underlying their Eighth Cause of Action fall within the definition of an
Amiga Prohibited Action because they allege that “Hyperion’s trademark applications and
registrations violate the Settlement Agreement,”, and “[a]t no time did Hyperion acquire
independent rights to use and register … [said marks].” Dkt. #47 ¶119, 125. Therefore, Cloanto
is prohibited from bringing any such action for the same reasons previously discussed in this Order.
The Court agrees that Cloanto is barred from bringing this claim by terms of the Settlement
Agreement’s Non-Aggression Clause and that the material breach exception in that clause cannot
apply to Cloanto. Count eight is dismissed.
F. Order Directing the USPTO to Deny Opposition No. 91237628USPTO (Count
Nine)
In Plaintiffs’ Opposition to Hyperion’s Motion for Summary Judgment, they concede
that Hyperion has withdrawn its opposition in the USPTO making their Ninth Cause of Action
moot. Dkt. #107 at 2 n.1. The Court dismisses count nine.
G. Motion for Leave to File Supplemental Briefing
Plaintiffs filed a Motion for Leave to File and Supplemental Briefing (Dkt. #133). The
Court has reviewed the supplemental briefing but finds the material does not have a bearing on
the issues deemed dispositive of Plaintiffs’ case. Therefore, the Motion is denied as moot.
//
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H. Motion for Leave to File Amended Answer
Hyperion filed a Motion for Leave to File Answer to Plaintiff’s Second Amended
Complaint and Second Amended Counterclaims arguing that following the filing of cross
motions for summary judgment, Plaintiffs “engag[ed] in a letter-writing campaign threatening at
least three of Hyperion’s suppliers or distributors with legal action.” Dkt. #137 at 4.
A “court should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P.
15(a)(2). Courts apply this policy with “extreme liberality.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Five factors are commonly used to assess the propriety
of granting leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party,
(4) futility of amendment, and (5) whether the party has previously amended the pleading. Allen
v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990); Foman v. Davis, 371 U.S. 178, 182
(1962). In conducting this five-factor analysis, the court must grant all inferences in favor of
allowing amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999).
Hyperion seeks to amend its Answer due to recent alleged developments. There is no
indication of undue delay, bad faith, or prejudice in this amendment. This is Hyperion’s first
motion to file an amended pleading. Plaintiffs oppose Hyperion’s motion on the basis that (a)
the proposed amendments fail to allege the elements of a tort of “interference with business
expectancy” related to the correspondence; (b) the correspondence is protected First Amendment
litigation conduct under the Noerr-Pennington doctrine; (c) Hyperion fails to state a claim upon
which relief may be granted; and (d) the proposed amendments are futile. In other words,
Plaintiffs only address one of the five factors. In weighing the five factors, the Court finds that
Hyperion’s Motion for Leave to File Answer to Plaintiff’s Second Amended Complaint and
Second Amended Counterclaims is granted.
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IV. CONCLUSION
Having reviewed the relevant briefing, the declarations and exhibits attached thereto, and
the remainder of the record, the Court hereby finds and ORDERS:
1. Plaintiffs’ Motion for Partial Summary Judgment (Dkt. #100) is DENIED;
2. Hyperion’s Motion for Summary Judgment (Dkt. #105) is GRANTED as to all
Counts contained in the Second Amended Complaint and as to all Plaintiffs;
3. Plaintiffs’ claims in the Second Amended Complaint are DISMISSED;
4. Plaintiffs’ Motion for Leave to File and Supplemental Briefing (Dkt. #133) is
DENIED as moot;
5. Hyperion’s Motion for Leave to File Answer to Plaintiff’s Second Amended
Complaint and Second Amended Counterclaims (Dkt. #137) is GRANTED.
Hyperion is directed to immediately file the Amended Answer attached to its
Motion.
DATED this 30th day of March, 2023.
A RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
Case 2:18-cv-00381-RSM Document 141 Filed 03/30/23 Page 12 of 12

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AmigaOS 4.x Beta Tester - Classic Amiga enthusiast - http://www.hd-zone.com is my Amiga Blog, check it out!

@HammerD

Wow. So the court either dismissed the counts or found in favor of Hyperion on every claim. And the court is giving Hyperion leave to file an amended complaint against Cloanto for Cloanto attempting to scare resellers and others against distribution of AmigaOS 3.x. This is a very significant victory for Hyperion. I wonder what's next.

Given our luck, probably an appeal.

-- eliyahu

Last edited by eliyahu on 30-Mar-2023 at 09:51 PM.

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"Physical reality is consistent with universal laws. When the laws do not operate, there is no reality. All of this is unreal."

@eliyahu

Yes...seems to be a total victory for Hyperion. I hope Cloanto lets it go so we can all move on!

_________________
AmigaOS 4.x Beta Tester - Classic Amiga enthusiast - http://www.hd-zone.com is my Amiga Blog, check it out!