amiga-news.de - The lawsuit between Thendic/Genesi and Amiga Inc.

17.Mar.2004 The lawsuit between Thendic/Genesi and Amiga Inc.
After a court decision regarding the lawsuit between Thendic/Genesi and Amiga Inc. (we reported) has been made new applications were placed which request a post modification of the decision.

To make the mess of these proceedings a bit more sorted out we summarized the history once again. If you are interested in the latest events only, you might jump to the section "What's next" and get informed about the current events.

Prehistory

In November 2000 Amiga Inc. and "Thendic Electronic Components GmbH" (in the following briefed as "Thendic") signed a license agreement regarding the AmigaDE. Thendic Electronic Components is a German subsidiary of "Pretory USA", that holding which also includes the French Pretory SA and their subsidiary Thendic France.

According to the contract Amiga is committed to port their "AmigaDE" to several planned devices of Thendic. Thendic will pay a licence fee of USD 4.50 for every device delivered with AmigaDE. On the other hand Genesi will get the right to use the Amiga Logos for their products. The contract mentions the Cashboy, MobiCash, Transponder, Cashboy@Home and Smartboy by name but those were never produced in series.

After a while it came to light that regarding some core points of the contract there was no agreement between the contractors. Three issues cristallized as most controverse:

1st: Which devices have to be supported by Amiga

The contract mentions the devices to be supported but also includes a clause which permits Thendic to add new devices to the list by appointment of Amiga. Amiga obliges to do not deny the appointment without well-founded reasons. After market introduction of the Pegasos Thendic brings in the appointment refering to that clause to ask for an AmigaDE port for this PPC computer. Amiga Inc. denies the port which lead Thendic to sue Amiga in February 2003.

After both parties took in several written applications Amiga's lawers asked for the permission to lay down their mandatory in September 2003 - reasons for their request are unknown to us. The judge granted their request on September the 30th 2003, Amiga loses the legal advice. According to the local American law a company is in need of legal advice by a lawer, therefore the judge announces a several times extended period to bring on new lawers.

While Amiga fails on that the judge announces the court decision on February the 20th 2004. Because Amiga's standpoint must be presented by a lawer the judge has to use the arguments of Thendic only ("In light of defendant's failure to participate...") to find a decision. He agrees on Thendic's point of view which does include the Pegasos to the devices to be supported. Amiga is sentenced to fullfill the contract ("specific performance") and gets a period of 30 days to give the AmigaDE to the plaintiff thus enabeling the plaintiff to integrate it to the Pegasos.

2nd: Is Genesi contractor also?

The contract between Amiga and Thendic describes Thendic's rights as "non transferable" but is valid for Thendic and all subordinated or related companies or subsidiaries.

On February the 18th 2003 Thendic's lawers applied to accept Genesi as an additional plaintiff because that company would be a contractor according to the definition within the contract. Further details of the relation between Genesi and Thendic were not given.

In a statement according to Thendic's application Amiga says they do not have sufficient knowledge of the relation between Thendic and Genesi to assess that claim and thus do not see Genesi as an appropriate contractor.

An answer by the judge regarding both applications is not to find within the publicly accessable documents, but the court decision mentions the plaintiffs (plural) - if this is a confirmation of Genesi's standpoint is not known by us.

3rd: Which trademarks may be used by Thendic/Genesi?

Within the contract it is stipulated that Thendic might use Amiga trademarks for promotion, website, products and packaging without asking prior. The "Amiga trademarks" are defined in appendix 3.1 as all trademarks, logos or trade names Amiga owns and are somehow related to the AmigaDE. Additionally there is a reference to appendix D which will describe the handling in detail.

Appendix C (appendix D does not exist) there is at least a section which covers the usage of the trademarks. There the Amiga trademarks are defined as the 'Powered by Amiga' logo, the 'Amiga' logo, the Amiga Boingball and all further Amiga trademarks which are hold by Amiga. Which one of the both contradictionary definitions is valid and which is void is not known to us.

Also the use of the trademarks is classified here in detail again and is identical to the classification within the main text. But this section has an additional hand written record which limits the usage of the trademarks to be only in conjunction with AmigaDE products and only after approval by Amiga. If this addition stays valid is also not known by us, the extension within the version of the contract viewed by us is signed by Bill McEwen only.

That both parties interpret this aspect of the contract in a different meaning is to infer by the recently announced use of the Amiga trademarks by Genesi or the just released declaration by Amiga they sold the AmigaOS - including the according trademarks - to KMOS Inc. Because that issue was not covered by the court yet the final decision has still to be found.

What's next

Amiga Inc. may - if they can get some legal advice again - appeal against the court's decision within a period of 30 days, according to our information they have not done so yet.

In the meanwhile Thendic/Genesi's lawers applied for a modification of the decision. The judge should grant not only for access to the AmigaDE but also to all documentation, all source codes, all object codes, and all derived code from that, all extensions and all enhancements, updates and upgrades. In that context Genesi seems to see the AmigaOS 4 as kind of "Upgrade" of the AmigaDE. This point of view should be supported by screen shots of several publications at Amiga's website and an email which is said to origin from Fleecy Moss.

On March the 15th Amiga Inc. - who now do have lawers again - commented that application detailed. They deny all claims for accessing the source code by the plaintiff and refer to according clauses within the contract.

With statements by Fleecy Moss, Bill McEwen, Ray A. Akey (Amiga Inc.), Garry Hare (KMOS Inc.) and Francis Charig (TAO) Amiga tries to point to other inconsistencies. So they claim Thendic and/or Bill Buck would not have been reachable by the given address. And the refered email by Fleecy Moss would be a fake which should be known by the plaintiff also. Further on some postings by Bill Buck within several discussion boards are refered to bring evidence that he tries to gain more than what the contract grants to him. (cg) (Translation: ub)

[News message: 17. Mar. 2004, 20:33] [Comments: 0]
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