amiga-news.de - Lawsuit: Application for an interim injunction against Hyperion

28.Dec.2018
Amiga.org (Forum) Lawsuit: Application for an interim injunction against Hyperion
In the legal dispute with Hyperion Entertainment (amiga-news.de reported), Amiga Inc., Itec, Amino and Cloanto now have applied for an interim injunction.

With the document (PDF file) Hyperion is supposed to be legally prohibted to sell AmigaOS 3.1.4. This application is based on the claimed break of the settlement agreement from 2009 by using the trademark AmigaOS and the Boing-Ball as well as by selling AmigaOS 3.1.4 including Hyperion's claim to be copyright holder. The involvement of Cloanto is based on its copyright on AmigaOS 3.1 and furthermore on signing of evidences 3 of the former agreement by Cloanto.

The application also confirms that the temporary stop of sales was based on a cease-and-desist letter. Only Hyperion's first service provider, Avangate, did respond but finally informed to continue saling the software as long as a preliminary injunction is not provided. According to conversations of Cloanto with third parties, Hyperion did ensure compensation to the service providers in case of legal actions.

With regard to Hyperion's rights it is said that in the claim in 2007 it was tried to assert section 2.07 of the OEM licence of 2001 which says that Hyperion is allowed to develop further AmigaOS 3.1 and to use its trademarks in case of the insolvency of Amiga Inc. The 2009 settlement agreement was only related to AmigaOS 4. As proof of evidence also Hyperion's own press release is used.

With regard to Cloanto it is said that one of the purposes of the settlement agreement has been to protect diverse rights acquired in 1994. Additional to the usage for the emulator Amiga Forever since 1997, Cloanto could use AmigaOS 1.1 to 3.0 on real Amigas since 1998 and AmigaOS 3.1 since 1999. In the years 2011 to 2016 Cloanto then among others acquired AmigaOS 3.1. The copyright for this version of the operating system the company already registered on 27. April 2007.

By breaking the settlement agreement and selling AmigaOS 3.1.4 financial losses were incurred but also a loss of reputation, the goodwill and of customers. Additionally on 30. November Cloanto was informed by one of its biggest trader that due to Hyperion's statement to the ownership on AmigaOS 3.1.4, Cloanto's AmigaOS-3.1 products are not sold any longer. In several countries the Cloanto's sales have collapsed.

Apart from the losses of Cloanto and the Amiga parties, the application for a temporary injunction is justified by the settlement agreement itself. Provided in paragraph 16, such an apllication is allowed without any proof of an actual loss. Besides, the majority of the sales volume of AmigaOS 3.1.4 was done in the first half of 2018 which generates an additional urgency. (snx) (Translation: dr)

[News message: 28. Dec. 2018, 20:28] [Comments: 0]
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