Amiga Inc v. Hyperion VOF

Filing 3

MOTION for Preliminary Injunction by Plaintiff Amiga Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order)Noting Date 5/25/2007.(Cock, Lawrence)

Amiga Inc v. Hyperion VOF

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Case 2:07-cv-00631-RSM

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[PROPOSED] ORDER CV07-0631-RSM CABLE, LANGENBACH, KINERK & BAUER LLP
1000 SECOND AVENUE BUILDING, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 (206 292-8800

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE AMIGA, INC., a Delaware corporation, Plaintiff, vs. HYPERION VOF, a Belgium corporation, Defendant. NOTE ON MOTION CALENDAR MAY 25, 2007 ORAL ARGUMENT REQUESTED COURT: HON. RICARDO MARTINEZ CASE NO.: CV07-0631-RSM [PROPOSED] ORDER GRANTING AMIGA, INC.'S MOTION FOR PRELIMINARY INJUNCTION

Dockets.Justia.com

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Plaintiff Amiga, Inc. ("Amiga"), having moved for a Preliminary Injunction, for the reason that Defendant Hyperion VOF ("Hyperion) appears to be (1) infringing Amiga's trademarks, (2) unjustifiably withholding the source code, object code and intellectual property to Amiga's operating system 4.0 ("OS 4.0") in violation of Amiga's rights and the parties' Agreement dated November 21, 2001 ("Agreement"), and (3) marketing, distributing, advertising, and selling products in violation of the Agreement, and the Court having considered all the pleadings, moving papers, exhibits and declarations submitted by the parties and the oral argument and any evidence presented at the hearing, and good cause showing, the Court hereby finds that: 1. Amiga is likely to succeed in showing that (a) Hyperion has infringed and continues to infringe Amiga's trademarks, including the AMIGA ®, "Powered by Amiga" and "Boing Ball" marks and logos; (b) Hyperion has breached the Agreement by selling and distributing products outside the scope of its license; (c) Amiga justifiably and properly terminated the Agreement after which Hyperion continued its distribution and sale of unauthorized products; (d) although Amiga has tendered performance under the Agreement and the Agreement's terms are clear and definite, Hyperion has refused to transfer to Amiga the source code, object code and intellectual property to OS 4.0 that is in Hyperion's possession and/or has refused to take the steps necessary to secure possession of, and then transfer to Amiga, such source code, object code and intellectual property to OS 4.0 in violation of the Agreement; 2. Defendant's breaches, infringements and refusal to transfer to Amiga the code and intellectual property to OS 4.0 has resulted and will continue to result in irreparable injury to Amiga if the Defendant is not immediately restrained from further unlawful activities;

[PROPOSED] ORDER - 1 CV07-0631-RSM

CABLE, LANGENBACH, KINERK & BAUER LLP
1000 SECOND AVENUE BUILDING, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 (206 292-8800

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3.

The harm to Amiga of denying the requested Preliminary Injunction greatly outweighs the harm to any legitimate interests of Defendant from granting the requested Preliminary Injunction, particularly because in the absence of the preliminary injunctive relief, Amiga will continue to experience irreparable harm for which monetary damages cannot compensate; and

4.

The public interest, and specifically the interest of the public in avoiding

confusion as to source and sponsorship of products and the interest of Amiga's actual and potential customers weighs heavily in favor of the requested relief.

Accordingly, IT IS HEREBY ORDERED THAT Amiga's Motion for Preliminary Injunction is granted as follows: 1. Defendant Hyperion VOF ("Hyperion"), and its successors, predecessors,

agents, servants, employees, contractors and each person acting in concert and participation with Hyperion are prohibited and enjoined from the following: (a) advertising, marketing, promoting, distributing and selling any

computers, software, hardware or other products using or containing the "AMIGA," "POWERED BY AMIGA" and/or "Boing Ball" trademarks (collectively referred to as "Amiga trademarks"), or otherwise using or displaying the Amiga trademarks on Hyperion's website or in promotional and marketing materials; (b) refusing to promptly provide to Amiga all of the object code,

source code and intellectual property to OS 4.0 in Hyperion's possession, custody or control and refusing to take steps necessary to secure possession of such code and intellectual property for transfer to Amiga; (c) advertising, marketing, promoting, distributing and selling OS 4.0

as a standalone product or in conjunction with any computers, platforms, products or other hardware; and
[PROPOSED] ORDER - 2 CV07-0631-RSM CABLE, LANGENBACH, KINERK & BAUER LLP
1000 SECOND AVENUE BUILDING, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 (206 292-8800

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(d)

engaging in any other activity constituting unfair competition with

Amiga, or constituting an infringement of Amiga's intellectual property, or constituting any damage to Amiga's reputation or goodwill. 2. Within 10 days of service of this Order, defendant Hyperion is further

ordered to deliver to counsel for Amiga all copies and all versions in Hyperion's possession of the source code and object code and other intellectual property for software developed by Hyperion or anyone acting in concert with Hyperion pursuant to the Agreement, including but not limited to, the source code, object code and intellectual property for OS 4.0. 3. To the extent that Hyperion is not in possession of the source code, object

code and/or intellectual property for OS 4.0 at the time this Order is served on Hyperion, Hyperion, within 10 days of service of this Order, is hereby ordered to take whatever steps are necessary to secure possession of, and then transfer to Amiga, such source code, object code and/or intellectual property for OS 4.0. 4. Within 20 days of service of this Order, Hyperion shall file with the Court

and serve upon counsel for Amiga a sworn affidavit detailing the manner in which Hyperion has complied with this Order. // // // // // // // //

[PROPOSED] ORDER - 3 CV07-0631-RSM

CABLE, LANGENBACH, KINERK & BAUER LLP
1000 SECOND AVENUE BUILDING, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 (206 292-8800

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This Order shall become effective immediately upon the posting of a bond in the amount of $10,000 by plaintiff Amiga. The injunction shall remain in effect during the pendency of this suit unless otherwise ordered by the Court.

Presented by: s/ Lawrence R. Cock Lawrence R. Cock, WSBA No. 20326 [e-mail] Cable, Langenbach, Kinerk & Bauer, LLP 1000 Second Avenue Suite 3500 Seattle, WA 98104 Telephone: [phone] Facsimile: [phone] Scott D. Baker (Pro Hac Vice application pending) [e-mail] Morgan W. Tovey (Pro Hac Vice application pending) [e-mail] Alison B. Riddell (Pro Hac Vice application pending) [e-mail] Reed Smith LLP Two Embarcadero Center, Suite 2000 San Francisco, CA 94111-3922 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff IT IS SO ORDERED. DATED this ___ day of April 2007 _________________________________ United State District Court Judge

[PROPOSED] ORDER - 4 CV07-0631-RSM

CABLE, LANGENBACH, KINERK & BAUER LLP
1000 SECOND AVENUE BUILDING, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 (206 292-8800