and taking all the fun away from you, no way Aussay 
Bethesda claims Interplay could only use the Fallout name
- Thread starter Brother None
- Start date
Zenimax. I am sure.
Ausir said:
Maybe I wrote it...
maybe NMA should collect money, buy all of them and run the company.
Faceless Stranger
Board Drifter
Definately... and then we buy the Franchise back.Crni Vuk said:
now youre beeing unrealistic!
Faceless Stranger
Board Drifter
And don't you forget itJohn B. said:
ZombieSupaStar
First time out of the vault
I posted this piece over at neogaf, and a law student was able to summarize a few things (mostly about the lawsuit so far, hes currently looking at the newest naming and what Fallout really means).
The Posters Credintials : Here
The Full Thread : Here
His Overview (probably mostly old news): Here (and also spoilered below)
[spoiler:470bb3df53]
I have written an overview of what I consider the relevant legal issues in the Bethesda Softworks, LLC v. Interplay Entm't Corp litigation. I have not covered everything, but the status of the Fallout MMO game is the major issue that Neogaf will be interested in.
The matter is before the United States District Court for the District of Maryland before her Honour Chasanow J.
The crux of Bethesda’s main argument is that Interplay’s rights to develop and publish a Fallout MMO have lapsed. Interplay sold the rights and IP in 'Fallout' to Bethesda in 2007 but retained the ability to develop a Fallout MMO Game (provided Interplay met certain conditions).
Interplay has counterclaimed against Bethesda on six grounds (including various breaches of contract and interference with Interplay’s attempts to publish the old fallout games).
If Bethesda is successful then it is highly likely that Interplay will be unable to develop a Fallout MMO. Interplay will nonetheless retain the rights to the old Fallout games that they have developed (although under their contractual arrangement Interplay requires an authorisation from Bethesda if they seek to publish any of the old Fallout games).
If Interplay is successful, they will likely get an award of compensatory damages (a lump sum of money). Interplay is also seeking to have the contracts transferring ownership of the Fallout IP set aside. This would effectively return ownership of the Fallout IP to Interplay (but would be a pretty drastic remedy).
Step One:
10 December 2009 – Bethesda’s application for a preliminary injunction (an order preventing Interplay from working on the Fallout MMO until the matter was resolved) was dismissed.
The reasons of Chasanow J in denying Bethesda a preliminary injunction preventing Interplay from working on the Fallout MMO were given ex tempore (that is, the reasons are not in writing but were given orally in open court).
As such, there is only a brief court order (two lines) that denies the injunction. These reasons would shed a considerable amount of light on the relevant legal issues so it is a shame they are unavailable. I would not read too much into her Honour denying the preliminary injunction. For example, if the product (the Fallout MMO) was about to be shipped a preliminary injunction would have most likely been granted. I would suggest that as Interplay will not be profiting off the rights in question until the matter is resolved a preliminary injunction is an unsuitable remedy (because there is no imminent need to prevent Interplay from working on the Fallout MMO).
Step Two:
Subsequently, in September 2009, Bethesda sought to have several (but not all) of Interplay’s six counter claims dismissed prior to trial (simply put, on the basis that the claims are insufficient). Interplay sought an order requiring Bethesda to pay Interplay’s costs in defending against Bethesda’s unsuccessful application for a preliminary injunction.
Her Honour gave reasons for dismissing parts of Interplay’s counter claim against Bethesda and denying Interplay’s application for a costs order on 23 September 2010. These reasons are available and shed some light on parties’ claims.
From her Honour’s reasons, it would appear that these are the major legal issues:
1. Does Interplay hold the rights to the Fallout MMO? (Still to be decided)
Bethesda’s claim is based upon Interplay having no juristic (or legal) reason to complete the Fallout MMO. That is, as Interplay did not satisfy clause 2.3 of the Trademark License Agreement (TLA) Interplay no longer hold the rights to make a Fallout MMO.
Clause 2.3 of the TLA provides that Interplay could develop a MMO based on Fallout, contingent upon meeting two conditions within twenty-four months of the TLA taking affect (That is, by 4 April 2009):
First, the TLA states that Interplay must begin the full-scale development of its Fallout MMO by 4 April 2009; and
Second, Interplay must have secured financing for the Fallout MMO in an amount no less than $30,000,000 by 4 April 2009.
If Interplay did not meet either of these conditions then they would ‘immediately lose and permanently forfeit its license rights under the [TLA] and the license rights automatically shall end, be void and otherwise terminate on the anniversary date of the second year after the Effective Date and [the TLA] shall no longer remain in effect’. Simply put, Interplay would cease to hold the rights to publish a Fallout MMO.
Interplay sent a letter to Bethesda on April 2, 2009, which stated that Interplay had complied with the conditions of the TLA. Bethesda sent a letter to Interplay in response on April 7, 2009, which stated that Interplay had failed to meet the TLA's preconditions under Section 2.3. Bethesda's letter also stated that ‘all license agreements under the [TLA] have been permanently forfeited and automatically ended, are void and otherwise terminated’ and told Interplay to immediately cease using the Fallout intellectual property.
This is a major issue that is left to be decided at trial. I would suggest that:
(a) Chansanow J will need to consider what the parties intended the term ‘full-scale development’ to mean;
(b) It would need to be established by Bethesda that Interplay has not commenced ‘full-scale development’; and
(c) Establish if Interplay has met their financial obligations.
Many of these issues will likely depend upon the intention of the parties, industry standards and to what extent Interplay has commenced ‘full-scale development’.
2. Should Bethesda pay Interplay’s costs for responding to the preliminary injunction? (decided)?
No.
To get a costs order Interplay needed to show that Bethesda pursued a preliminary injunction to enforce its trademark rights because of:
(a) Malice/fraud;
(b) economic coercion;
(c) pursued groundless arguments; or
(d) failed to cite controlling law.
Her Honour found that Interplay had failed to establish any of the above.
3. What is Interplay claiming?
(I have no more details on the substance of these claims).
(a) That Bethesda has breached the TLA;
(b) That Bethesda has breached the Asset Purchase Agreement;
(c) That Bethesda has breached an implied condition of good faith and fair dealing (an unwritten contractual term) (claim dismissed 24 September 2009);
(d) Tortious (Wrongful) Interference with Prospective Economic Advantage. That is, Bethesda wrongfully interfered with Interplay’s commercial arrangements with other companies (Essentially Bethesda wrongfully wrote cease and desist letters to companies that were conducting business with Interplay relating to Fallout. Being a potential publisher for the old fallout games and a company who intended to make a tabletop fallout board game). (claim dismissed 24 September 2009);
(e) A recission claim (essentially setting aside the contracts between Interplay and Bethesda); and
(f) A declaration by the court as to the parties legal rights.
There are several other issues.
Bethesda claims that Interplay is in breach of contract for not getting Bethesda’s approval for the release of the ‘Fallout Trilogy’. Interplay retained the rights to Fallout, Fallout 2 and Fallout Tactics after the sale of the IP to Bethesda. However, the APA requires all advertising, packaging and other promotional material to be sent to Bethesda for approval. Bethesda claims that Interplay did not statisfy this obligation with respect to the Fallout Trilogy pack, nor any digital distribution platforms. Bethesda also claims that the name Trilogy constitutes unfair competition, since it suggests that the pack includes Fallout 3.
There are a few other issues that for the sake of brevity I have not included.
I hope this is useful. Please feel free to post any questions or additions.
Any mistakes are my own.[/spoiler:470bb3df53]
He's currently looking at the naming issue as of my post here.
The Posters Credintials : Here
The Full Thread : Here
His Overview (probably mostly old news): Here (and also spoilered below)
[spoiler:470bb3df53]
I have written an overview of what I consider the relevant legal issues in the Bethesda Softworks, LLC v. Interplay Entm't Corp litigation. I have not covered everything, but the status of the Fallout MMO game is the major issue that Neogaf will be interested in.
The matter is before the United States District Court for the District of Maryland before her Honour Chasanow J.
The crux of Bethesda’s main argument is that Interplay’s rights to develop and publish a Fallout MMO have lapsed. Interplay sold the rights and IP in 'Fallout' to Bethesda in 2007 but retained the ability to develop a Fallout MMO Game (provided Interplay met certain conditions).
Interplay has counterclaimed against Bethesda on six grounds (including various breaches of contract and interference with Interplay’s attempts to publish the old fallout games).
If Bethesda is successful then it is highly likely that Interplay will be unable to develop a Fallout MMO. Interplay will nonetheless retain the rights to the old Fallout games that they have developed (although under their contractual arrangement Interplay requires an authorisation from Bethesda if they seek to publish any of the old Fallout games).
If Interplay is successful, they will likely get an award of compensatory damages (a lump sum of money). Interplay is also seeking to have the contracts transferring ownership of the Fallout IP set aside. This would effectively return ownership of the Fallout IP to Interplay (but would be a pretty drastic remedy).
Step One:
10 December 2009 – Bethesda’s application for a preliminary injunction (an order preventing Interplay from working on the Fallout MMO until the matter was resolved) was dismissed.
The reasons of Chasanow J in denying Bethesda a preliminary injunction preventing Interplay from working on the Fallout MMO were given ex tempore (that is, the reasons are not in writing but were given orally in open court).
As such, there is only a brief court order (two lines) that denies the injunction. These reasons would shed a considerable amount of light on the relevant legal issues so it is a shame they are unavailable. I would not read too much into her Honour denying the preliminary injunction. For example, if the product (the Fallout MMO) was about to be shipped a preliminary injunction would have most likely been granted. I would suggest that as Interplay will not be profiting off the rights in question until the matter is resolved a preliminary injunction is an unsuitable remedy (because there is no imminent need to prevent Interplay from working on the Fallout MMO).
Step Two:
Subsequently, in September 2009, Bethesda sought to have several (but not all) of Interplay’s six counter claims dismissed prior to trial (simply put, on the basis that the claims are insufficient). Interplay sought an order requiring Bethesda to pay Interplay’s costs in defending against Bethesda’s unsuccessful application for a preliminary injunction.
Her Honour gave reasons for dismissing parts of Interplay’s counter claim against Bethesda and denying Interplay’s application for a costs order on 23 September 2010. These reasons are available and shed some light on parties’ claims.
From her Honour’s reasons, it would appear that these are the major legal issues:
1. Does Interplay hold the rights to the Fallout MMO? (Still to be decided)
Bethesda’s claim is based upon Interplay having no juristic (or legal) reason to complete the Fallout MMO. That is, as Interplay did not satisfy clause 2.3 of the Trademark License Agreement (TLA) Interplay no longer hold the rights to make a Fallout MMO.
Clause 2.3 of the TLA provides that Interplay could develop a MMO based on Fallout, contingent upon meeting two conditions within twenty-four months of the TLA taking affect (That is, by 4 April 2009):
First, the TLA states that Interplay must begin the full-scale development of its Fallout MMO by 4 April 2009; and
Second, Interplay must have secured financing for the Fallout MMO in an amount no less than $30,000,000 by 4 April 2009.
If Interplay did not meet either of these conditions then they would ‘immediately lose and permanently forfeit its license rights under the [TLA] and the license rights automatically shall end, be void and otherwise terminate on the anniversary date of the second year after the Effective Date and [the TLA] shall no longer remain in effect’. Simply put, Interplay would cease to hold the rights to publish a Fallout MMO.
Interplay sent a letter to Bethesda on April 2, 2009, which stated that Interplay had complied with the conditions of the TLA. Bethesda sent a letter to Interplay in response on April 7, 2009, which stated that Interplay had failed to meet the TLA's preconditions under Section 2.3. Bethesda's letter also stated that ‘all license agreements under the [TLA] have been permanently forfeited and automatically ended, are void and otherwise terminated’ and told Interplay to immediately cease using the Fallout intellectual property.
This is a major issue that is left to be decided at trial. I would suggest that:
(a) Chansanow J will need to consider what the parties intended the term ‘full-scale development’ to mean;
(b) It would need to be established by Bethesda that Interplay has not commenced ‘full-scale development’; and
(c) Establish if Interplay has met their financial obligations.
Many of these issues will likely depend upon the intention of the parties, industry standards and to what extent Interplay has commenced ‘full-scale development’.
2. Should Bethesda pay Interplay’s costs for responding to the preliminary injunction? (decided)?
No.
To get a costs order Interplay needed to show that Bethesda pursued a preliminary injunction to enforce its trademark rights because of:
(a) Malice/fraud;
(b) economic coercion;
(c) pursued groundless arguments; or
(d) failed to cite controlling law.
Her Honour found that Interplay had failed to establish any of the above.
3. What is Interplay claiming?
(I have no more details on the substance of these claims).
(a) That Bethesda has breached the TLA;
(b) That Bethesda has breached the Asset Purchase Agreement;
(c) That Bethesda has breached an implied condition of good faith and fair dealing (an unwritten contractual term) (claim dismissed 24 September 2009);
(d) Tortious (Wrongful) Interference with Prospective Economic Advantage. That is, Bethesda wrongfully interfered with Interplay’s commercial arrangements with other companies (Essentially Bethesda wrongfully wrote cease and desist letters to companies that were conducting business with Interplay relating to Fallout. Being a potential publisher for the old fallout games and a company who intended to make a tabletop fallout board game). (claim dismissed 24 September 2009);
(e) A recission claim (essentially setting aside the contracts between Interplay and Bethesda); and
(f) A declaration by the court as to the parties legal rights.
There are several other issues.
Bethesda claims that Interplay is in breach of contract for not getting Bethesda’s approval for the release of the ‘Fallout Trilogy’. Interplay retained the rights to Fallout, Fallout 2 and Fallout Tactics after the sale of the IP to Bethesda. However, the APA requires all advertising, packaging and other promotional material to be sent to Bethesda for approval. Bethesda claims that Interplay did not statisfy this obligation with respect to the Fallout Trilogy pack, nor any digital distribution platforms. Bethesda also claims that the name Trilogy constitutes unfair competition, since it suggests that the pack includes Fallout 3.
There are a few other issues that for the sake of brevity I have not included.
I hope this is useful. Please feel free to post any questions or additions.
Any mistakes are my own.[/spoiler:470bb3df53]
He's currently looking at the naming issue as of my post here.
If they ever manage to pull this one off I will laugh very loudly and will be convinced that the end is near.
No way in hell Hervey boy, no way in hell.
Not a bad summation, ZombieSupaStar, good read, if - again - nothing new for those of us who've followed the case.
Interplay has filed its counterclaim. Frankly, it looks more reasonable than Bethesda's. When the lawsuit started, I was certain Bethesda would win. But with Interplay's lawyers (particularly Gersh) being so good, and Bethesda's being so inept, I'm not so sure anymore.
This whole thing is better than any soap opera.