@all
In a court order filed 06/11/07, Amiga Incs motion for a preliminary injunction has been DENIED by the court.
This matter is before the Court for consideration of a motion by plaintiff Amiga, Inc., (“Amiga”) for a preliminary injunction. Oral argument was heard on May 31, 2007, and the matter has been fully considered. For the reasons set forth below, the Court DENIES plaintiff’s motion.
e ancora:
Main topics that were analysed by the court and reason to DENY the motion:
Quote:
I. Amiga Delaware as Successor in Interest
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In the absence of proof of Amiga Delaware’s status as lawful successor in interest to the rights set forth in the Agreement, and of Hyperion’s and Eyetech’s written acceptance thereof in compliance with §7.12 of the Agreement, it cannot be said that plaintiff has demonstrated a strong likelihood of success on the merits. The motion for a preliminary injunction may be denied on this basis alone.
II. Insolvency of Amiga Washington
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However, nowhere have the parties to the Agreement defined what was meant by “insolvent”. There is thus a serious factual dispute over whether (and when) Amiga Washington became insolvent, and the effect of that insolvency on its trademark rights under § 2.07 of the Agreement. In light of this unresolved factual question, it cannot be said that Amiga has demonstrated a likelihood of success on the merits of its claims.
III. The $25,000 “Buy-In” by Amiga
Amiga contends that it timely paid $25,000* pursuant to § 3.01 of the Agreement, and it is now entitled to possession of the source code, object code, and intellectual property to OS 4.0. This appears to be the heart of the motion for a preliminary injunction. Hyperion contends in response that some of the payments were applied to outstanding invoices instead of toward the $25,000 “buy-in” amount, as provided for in § 3.01. There is also a dispute regarding the completion date for OS 4.0, which date triggers the due date for the payment; Hyperion contends that the payment was not made within six months of the December, 2004 completion date for OS 4.0, while Amiga asserts that the December 2004
OS 4.0 was merely a “beta” or unfinished version of OS 4.0. These disputes regarding the payments and the completion date of OS 4.0 cannot be resolved on the record before the Court as it now stands. Therefore, Amiga has failed to demonstrate a likelihood of success on the merits of its claim to the source code, object code, and intellectual property at this time.
*At oral argument it was admitted that due to a calculation error the actual amount paid was $24,750
http://amigaworld.net/modules/newbb/viewtopic.php?mode=viewtopic&topic_id=23371&forum=2&start=160&viewmode=flat&order=0#384831
http://amigaworld.net/modules/newbb/viewtopic.php?mode=viewtopic&topic_id=23371&forum=2&start=160&viewmode=flat&order=0#384834
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