Bethesda claims Interplay could only use the Fallout name

Brother None

Brother None

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The Vault has got hold of a bunch of court documents from IPLY vs Bethesda and brings word that Bethesda is claiming Interplay's rights according to the license agreement did not extend beyond the usage of the Fallout name.<blockquote>The breach of contract claims asserted by Interplay (...) fail because Bethesda is not obligated or under any legal duty to allow Interplay to utilize the panoply of Fallout assets in connection with an MMOG. Interplay transferred its right, title and interest in and to all Fallout Intellectual Property to Bethesda for $5.75 million. This included, among other rights and properties, all characters, story lines, weapons, art and other game related assets as well as the copyright and trademark registrations that protect same. (...) In the APA, Interplay further represented and warranted that any and all Fallout game assets that it owned were being transferred to Bethesda. (...) The APA contained one single-license back agreement – the TLA. The TLA plainly and unambiguously concerns one single mark – FALLOUT.

(...)

Despite the clarity of both the APA and the TLA, Interplay has in recent months promoted its purported MMOG project by repeatedly using numerous Fallout related trademarks and copyright protected elements that it has no proper right to use under either the APA or TLA. (...) Interplay’s use of Bethesda’s Fallout intellectual property such as characters, weapons, and story lines was not a “benefit of its bargain” as Interplay claims. The only bargain Interplay made for a MMOG was the conditional right to use the FALLOUT trademark.</blockquote>That is bizarre.
 
Interplay says that "Bethesda has breached its agreements with Interplay by refusing to allow Interplay the right to use the Fallout related intellectual property assets".

However, Bethesda lawyers now claim that when Interplay licensed the rights to develop and publish Fallout Online from Bethesda back in 2007, it actually never had the rights to use any elements of the Fallout universe and Fallout games aside from the "Fallout" trademark itself. Basically, to something that would literally be "Fallout in name only".
 
To clarify the document-- does it mean that Interplay is only allowed to use the name "Fallout," but not any Fallout assets? No "master" or "Nuka-Cola" or "Vault 13"? Or am I completely confused?
 
So, the Fallout MMO could be called "Fallout," but be basically a generic poker game? Ha! Wait, no "Ha!," more like "Huh?"
 
Little Robot said:
To clarify the document-- does it mean that Interplay is only allowed to use the name "Fallout," but not any Fallout assets? No "master" or "Nuka-Cola" or "Vault 13"? Or am I completely confused?
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Yes, that is what Bethesda now claims. Interplay claims otherwise, of course.
 
Crni Vuk said:
I dont understand it, could someone explain please :S
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Right, remember when Interplay sold Bethesda the Fallout IP and in return was given the rights to work on a Fallout MMO? Well, Bethesda claims this license back only extended to the Fallout name, and the MMO Interplay was given the right to make would be allowed to use the name but none of the Fallout IP materials, by that agreement.

That claim is bizarre and unlikely to hold up in court.
 
That seems really unlikely. Although admittedly if anyone would ever be stupid enough to sign such a deal I suppose it'd be Herve. :P
 
That claim is bizarre and unlikely to hold up in court.
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Well, the TLA only mentions the Fallout trademark explicitly. I'm not saying that Bethesda is playing fair here, but Herve was still pretty dumb to sign this kind of agreement.
 
Yes, it seems like a really stupid thing to do. If the TLA doesn't mention Fallout assets being allowed, then I can see how this would be tenable in court I suppose.
 
Brother None said:
That claim is bizarre and unlikely to hold up in court.
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Of course, a court is probably the only place where it might hold up.

Edit: double-ninja'd
 
Ausir said:
Well, the TLA only mentions the Fallout trademark explicitly.
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You mean under scheduled marks? True. But it doesn't explicitly withhold the rights either, in which case a court has to rule with Interplay, simply due to good faith contract thinking.

Specifically, this;
Nothing in this Agreement shall be construed as providing the seller [Interplay] with any retained rights, title or other interest of any kind in or to any of the Acquired Assets. Seller recognizes and acknowledges that the Purchased Intellectual Property and all rights therein and all goodwill pertaining thereto solely and exclusively belong to Purchaser [Bethesda] effective automatically upon the Closing and that all uses of the Purchased Intellectual Property shall inure to the benefit of Purchaser.

Is a meaningless paragraph to quote from a legal viewpoint. It and the surrounding paragraphs are simply there to clarify Bethesda's ownership is full, not that it has the rights to arbitrarily limit Interplay's rights to the licensed marks, limited to FOOL.

Since the TLA, at a quick glance, does not explicitly withhold Interplay's usage of everything related to the Fallout mark, the claim is pretty frivolous. I'm not re-reading the entire APA and TLA to verify, but what Bethesda quotes in its claim as presented by the Vault comes across as trying to catch Interplay out on a non-existing technicality (which is that under licensed marks the TLA only lists "Fallout"). It's paperthin.

I wish the two would just bloody well settle already.
 
Diomedes20 said:
Oh my god, this would suck... I think I'm starting to actually hate bethesda.
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I don't like them, but then again-- what they're doing makes sense for a company. They want to be the only ones to produce Fallout materials and make money off the license which they did pay for, so effectively neutering the MMO is, although really a kick in the balls for the fans, good business.
 
Well, it does say

Any and all rights not explicitly granted to Interplay hereunder are reserved by Bethesda.
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and only the trademark was explicitly granted. I'm not saying that they are right or they aren't, but I wouldn't dismiss it as frivolous either, unlike e.g. Bethesda's demand for a jury trial. It's for the court to decide (or for the settlement to settle).

The only license back agreement contained in the APA is attached at Exhibit B-1, and is called the “Trademark License Agreement,” or the TLA. Bethesda, through the TLA, granted to Interplay, subject to certain conditions,4 an exclusive, non- transferable license and right to use one single asset – the FALLOUT trademark – in connection with a massively multiplayer online game (“MMOG”). See TLA § 2.1; TLA Recital A; TLA Schedule of Marks. There is no other license back to Interplay of any Fallout related intellectual property in the APA.5 Indeed, Bethesda and Interplay agreed that “[a]ny and all rights not explicitly granted to Interplay hereunder are reserved by Bethesda.” TLA § 2.6.
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One of the marvels of the justice system, in the end it's all down to interpretation. Now that I'm reading over the SEC filing, I can kind of see where Bethesda's claim is relevant.

However, in the report Bethesda refers to everything that was sold as the "Licensed Marks".

http://sec.gov/Archives/edgar/data/1057232/000117091807000324/ex10-49.txt

At the bottom where it's explained in depth (in terms of what it actually means) they just say "Fallout".
 
However, in the report Bethesda refers to everything that was sold as the "Licensed Marks".
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No, it only specifies in the recital that Licensed Marks are assets sold to Bethesda under the APA, but not that all of these assets fall under "Licensed Marks".

At the bottom where it's explained in depth (in terms of what it actually means) they just say "Fallout".
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Yes, and it's down to the judge's interpretation whether "Fallout" as specified in Schedule 1 means the whole Fallout intellectual property, or just the "Fallout" trademark. It's not entirely clear cut, but I wouldn't call it frivolous either.
 
I don't follow this closely, but is Interplay a public company? If so, why don't Zenimax simply buy it off?

I'm guessing it would be much more painless and even possibly cheaper (as this could be prolonged, and Zenimax online most probably are making TES and Fallout mmos, making it potentially unnecessary problem/competition for those games). I don't think theirs (Interplay's) public worth is even mil. (at best two) now.
 
I actually recently looked at the TLA just to see whether any limit on what assets Interplay was allowed to use (e.g. not any assets from the Bethesda-published Fallouts), and was surprised that there is no such clause in the argeement. I had previously assumed that Bethesda would limit IPLY's access to any elements of the setting that they created. Bethesda not intending to let Interplay use any pre-existing part of the setting would actually make sense in this light.
 
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