Hyperion trying to lay claim to the Amiga name?

[redrumloa]

As reported on Moob..

On Thursday, Jun 14, 2007, Rich Woods wrote:
> 39 ANSWER to Complaint , Affirmative Defenses and, COUNTERCLAIM against
> plaintiff Amiga Inc by Hyperion VOF.(Kinsel, William) (Entered: 06/13/2007)

"Amiga Delaware's claims are barred by its unclean hands."

Amiga is unclean! UNCLEAN!! Throw it on the plague wagon!


"Hyperion is entitled to an injunction prohibiting Amiga Delaware from using the name 'Amiga' in its corporate name, in corporate sponsorships of public facilities, and from using the Amiga trademarks"

Now Hyperion will try to steal the Amiga name from AInc. This is turning into something out of a bad anime.

[Flashlab]

I don't care really anymore... At least Hyperion produced something in recent years. Can't say that about A Inc...

[xeron]

If Hyperion gets full control over the Amiga name and AmigaOS from this court case, I think thats the best outcome.

[quenthal]

If what they claim is true, I wouldn't call it stealing. It is impressive document and if all goes well for Hyperion, we might even be able to buy OS4 someday.

[dammy]

If what they claim is true, I wouldn't call it stealing. It is impressive document and if all goes well for Hyperion, we might even be able to buy OS4 someday.

No chance in Hell will that happen.  Before that impossible solution would occure, the courts throw it back to WA State courts.  WA State would then sell off the IP to pay existing creditors to settle all AI WA's debts.  

The tatic Hyperion is using is to annoy AI to the maximum by forcing them to go to great lengths (and cost huge amount of attorney fees) to prove they do own the IP.  I think that is what Hyperion is trying to do, bleed AI as much as possible and force a new contract.  It is their ONLY option afterall.

Of course, this opens the door for AI to do the same with Hyperion in attempt to bleed them dry be demanding documentation and other things.

Dammy

[itix]

I doubt it works out because Hyperion does not own Amiga.

[Hans_]

dammy wrote:
No chance in Hell will that happen.  Before that impossible solution would occure, the courts throw it back to WA State courts.  WA State would then sell off the IP to pay existing creditors to settle all AI WA's debts.  

The problem is that AI WA doesn't exist any more. You can't sell off items to pay debts for a company that no longer exists. If they are right that KMOS never legitimately obtained ownership of the trademarks then AI Delaware can't use those trademarks.

The interesting question is, who would own the trademarks then? Hyperion won't; they have a license to USE the trademarks for Amiga OS4. AI Washington no longer exist. Would the ownership fall back to Gateway?

Hans

EDIT: Maybe it could be used to pay AI Washington's creditors, seeing as they were originally not used for that purpose because they had supposedly been sold to Itec and then KMOS.

[guru-666]

first off I think this is great, finaly somebody is telling those folk at a inc which way the wind blows.

@itix
well who owns it then, becasue if you read the documents it does not look like the new  a. inc has any right to anything.

I and others have been saying this for a long time, but now the courts are starting to lean that way also.  No offect to the a.inc fan boys but it jsut never added up.


the shell games has gone bad, billy will end up with nothing, if anybody was the theif it was him to start with.
 

[MskoDestny]

dammy wrote:

If what they claim is true, I wouldn't call it stealing. It is impressive document and if all goes well for Hyperion, we might even be able to buy OS4 someday.

No chance in Hell will that happen.  Before that impossible solution would occure, the courts throw it back to WA State courts.  WA State would then sell off the IP to pay existing creditors to settle all AI WA's debts.  

The contract grants Hyperion and Eyetech an “exclusive, perpetual, world-wide and royalty free
right and license” to OS4 and the Amig OS trademark in the event of Amiga, Inc. Washington's insolvency. In the recently released court papers, the judge pointed out that the contract does not clearly define insolvency for the purposes of the contract, but assuming that the court decides that Amiga Inc was indeed "insolvent" it would seem that Hyperion would still have a license to develop/modify/sell OS4 even if there was some court decision forcing the sale of Amiga Inc washington's assets. Of course, IANAL so I may be missing something.

I think that is what Hyperion is trying to do, bleed AI as much as possible and force a new contract. It is their ONLY option afterall.

I don't see how it's their only option. If they don't settle out of court, presumably the case will move forward. If Hyperion wins they can continue to sell and develop OS4 under the Amiga OS name. Unless your argument is that Hyperion can't afford to continue the court case, which is possible, but I don't believe there's any public info on Hyperion's financials.

Of course, I'm sure there will be a new round of negotiations towards a settlement in light of this judgement. Whether those negotiations will actually result in a settlement is an open question.

[dammy]

The contract grants Hyperion and Eyetech an “exclusive, perpetual, world-wide and royalty free
right and license” to OS4 and the Amig OS trademark in the event of Amiga, Inc. Washington's insolvency.

Problem is, that will not stand in the US Courts.  You can not sheild that type of IP from creditors.  So either it still apart of AI-WA (and the ball will be thrown back into the WA State venue and out of US Court's venue) or it's now AI-DE. Either way, Hyperion has no hope in getting the IP, legally or financially (Pennti would drain Hyperion in the courts with years worth of appeals and such).

Dammy

[itix]

well who owns it then, becasue if you read the documents it does not look like the new a. inc has any right to anything.

According to United States Patent and Trademark Office, Amiga trademark is owned by Amiga Inc in Delaware.

[guru-666]

@itix
dude that the whole point, it may say that but right now it does not look like that will stand.

@dammy

it does not matter what happens to the name hyperion can use it if they wish.

it will be very difficult for a-inc (washington) to claim they where NOT insolvent given the depts they owe everbody!  Even if the have to auction off the name "amiga" to pay bolton peck and such, hyperion has the right to use it, according to the contract.

the definition is pretty clear to me, you can't pay your bills, guess what your insolvent!

Now would be a good time for investors to walk away from a inc.

[amigean]

hmm... a quick look at the USPTO website (trademark search function) revealed the following:

1) Original Amiga trademark remains with Amiga Inc of Washington (!). It was renewed though in September 2006. I quote:

Word Mark      AMIGA
Translations    FRIENDLY
Goods and Services    IC 009. US 026 038. G & S: COMPUTERS, COMPUTER DISK DRIVES, RAM EXPANSION CARTRIDGES, COMPUTER MONITORS, AND COMPUTER MODEMS. FIRST USE: 19850723. FIRST USE IN COMMERCE: 19850806
Mark Drawing Code    (1) TYPED DRAWING
Design Search Code    
Serial Number    73571532
Filing Date    December 4, 1985
Current Filing Basis    1A
Original Filing Basis    1A
Published for Opposition    April 22, 1986
Registration Number    1401045
Registration Date    July 15, 1986
Owner    (REGISTRANT) COMMODORE-AMIGA, INC. CORPORATION CALIFORNIA 983 UNIVERSITY AVENUE LOS GATOS CALIFORNIA 95030

(LAST LISTED OWNER) AMIGA, INC. CORPORATION WASHINGTON Suite 301 167 Madison Avenue NEW YORK NEW YORK 10016
Assignment Recorded    ASSIGNMENT RECORDED
Attorney of Record    Darren B. Cohen
Type of Mark    TRADEMARK
Register    PRINCIPAL
Affidavit Text    SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20060926.
Renewal    1ST RENEWAL 20060926
Live/Dead Indicator    LIVE

2) Another set of "Amiga" trademarks (about 4 of them) covering among other things  DE, PDAs, OSs, and forums  (:lol:) appear to have been registered between July and August 2006.  

----

On other news, the trademark for "Amiga Forever" appears to have been "abandoned" back in February 2005 - juicy stuff...  :-P

[itix]

dude that the whole point, it may say that but right now it does not look like that will stand.

As long as Amiga Delaware is listed as owner of Amiga trademark at USPTO it will stand.

[MskoDestny]

dammy wrote:

The contract grants Hyperion and Eyetech an “exclusive, perpetual, world-wide and royalty free
right and license” to OS4 and the Amig OS trademark in the event of Amiga, Inc. Washington's insolvency.

Problem is, that will not stand in the US Courts.  You can not sheild that type of IP from creditors.  So either it still apart of AI-WA (and the ball will be thrown back into the WA State venue and out of US Court's venue) or it's now AI-DE. Either way, Hyperion has no hope in getting the IP, legally or financially (Pennti would drain Hyperion in the courts with years worth of appeals and such).

Dammy

Except it's not shielded from creditors. The insolvency clause of the contract doesn't grant ownership of the IP to Hyperion and Eyetech just a license to it. And this of course assumes that the buyback clause was actually properly executed in the first place (the judgement notes contradicting claims in this area) in which case Amiga Inc, may not have even owned the OS at the time of it's "insolvency"

Furthermore, even if Amiga Washington is in possession of the relevant IP, someone (presumably a creditor) is going to have to start another lawsuit to get its assets auctioned off properly.

That said, I don't have a whole lot of interest in who wins this case. I've long since lost interest in using Amiga OS or any of its derivatives (though a proper classic amiga port of AROS might pique my interest). In some ways, I kind of hope the case continues as all kinds of interesting drama is popping out of the woodwork as a result.