Interplay done for, Bethesda sues, Defonten creates

[Petrell]

I wish Interplay would just die already, and if Beth can help, so be it.

I rather not see Interplay closed down as it would mean many games would be pulled from GOG.com catalog. I don't really care about V13 or it's fate but why did beth have to add FO trilogy to the lawsuit? It's like they're agitated by the fact that the old trilogy sells so well and they get not a cent of the profits...

 

[Petrell]

The only original Fallout dev (or any dev we know of, for that matter) still at Interplay is Chris Taylor. Although he hasn't posted in the IPLY forum for 2 weeks, so he might have left already as well.

Actually he did reply recently to topic about the lawsuit no less. He was on vacation apparently (probably nice to hear this first thing you get back to work). He can't comment on lawsuit obviously.

 

[Ausir]

New details have surfaced. Turns out there are actually two lawsuits - one over Fallout Online, and the other over Fallout Trilogy and other re-releases of the original Fallout games. See:

Bethesda vs. Interplay - more detail

 

[rcorporon]

Beth suing over the Trilogy just seems like sour grapes.

As for FOOL, I'm pretty sure this thing never seeing the light of day was for the best.

 

[frosty_theaussie]

Then all the awesome people there can go to Obsidian to work on offline New Vegas

The only original Fallout dev (or any dev we know of, for that matter) still at Interplay is Chris Taylor. Although he hasn't posted in the IPLY forum for 2 weeks, so he might have left already as well. Jason Anderson left early this year to work on Wasteland 2 at inXile.

Maybe when Herve's Interplay in name only finally dies, Brian Fargo will buy the name back?

woah, there's a Wasteland 2 in development? that sounds great!

 

[Ausir]

See:

http://wasteland.wikia.com/wiki/Wasteland_2_FAQ

 

[Cimmerian Nights]

the other over Fallout Trilogy and other re-releases of the original Fallout games.

This is so Orwellian, them suppressing the sale of FO1 and 2, like they never happened.

So they are charging trademark infringement for selling the original iterations of the series? The games that defined what the series is? That they did nothing but bid the most to take ownership?

This is like when the dude who owns the CCR catalogue sued John Fogarty for sounding too much like himself.

 

[UncannyGarlic]

New details have surfaced. Turns out there are actually two lawsuits - one over Fallout Online, and the other over Fallout Trilogy and other re-releases of the original Fallout games.

Here's what I could find in the old agreement filed that might be related.

2.1 GRANT OF LICENSE. Subject to the terms and conditions set
forth in this Agreement, Bethesda grants to Interplay an exclusive,
non-transferable license and right to use
the Licensed Marks on and in connection with Interplay's FALLOUT-branded MMOG
(the "FALLOUT MMOG" or "LICENSED PRODUCT") and for no other purpose. The
conditional license herein does not grant Interplay any right to sublicense any
of the licensed rights without Bethesda's prior written approval.

If I remember right, Interplay went in with the other MMO developer so if they didn't have Beth's prior written approval, they are in breach.

3.1 SOLE OWNER. Interplay acknowledges and agrees that, as
between the parties, Bethesda is the sole and exclusive owner of the Licensed
Marks. Bethesda may, in its sole discretion, maintain or discontinue the
maintenance of any applications and registrations for the Marks or seek
registration for any Licensed Mark at any time.

Looks like Beth owns all previous Fallout games...

5.5 CONFUSINGLY SIMILAR MARKS. Interplay agrees not to adopt
or use any other trademark, word, symbol, letter, design or mark that is
confusingly similar to the Licensed Mark. Interplay may use the Licensed Mark
with other marks or names sufficiently separated from the Licensed Mark and
sufficiently distinctive to avoid the consumer impression that such other marks
or their owners are associated with Bethesda.

This is also possibly arguable, though with the game unreleased, I'm not so sure they really have a legal case on this.

6.2 ENFORCEMENT. Interplay shall regularly monitor the
marketplace to detect potentially infringing or non-conforming uses of the
Licensed Marks. Interplay shall promptly notify Bethesda of any apparent
infringement of or challenge to Interplay's use of any of the Licensed Marks, or
claim by any person of any rights in any of the Licensed Marks. Bethesda shall
have discretion to take such action as it deems appropriate and the right to
exclusively control any litigation, Patent and Trademark Office proceeding or
other proceeding arising out of any such infringement, challenge or claim.
Interplay agrees to execute any and all instruments
and documents and to do such acts and things as, in the opinion of Bethesda's
counsel, may be reasonably necessary or advisable to protect and maintain the
interests of Bethesda in the Licensed Marks. Bethesda shall incur no liability
to Interplay by reason of Bethesda's failure or refusal to prosecute, or by
Bethesda's refusal to permit Interplay to prosecute, any alleged infringement by
third parties, nor by reason of any settlement to which Bethesda may agree.

This is a wonderful clause, it basically says that if Interplay doesn't police the market for items which breach Fallout trademark that they are in breach. They may be able to argue that they have practiced this in good faith so the judge could throw it out.

9.3.2 Within thirty (30) days after termination of
this Agreement, Interplay shall provide Bethesda with a complete schedule of all
materials bearing the Licensed Marks then on hand or in inventory (including
inventory of its subcontractors or agents) including, but not limited to, the
Licensed Product, packaging, and advertising and promotional materials. Upon
request and at Bethesda's sole discretion, Interplay promptly shall deliver to
Bethesda or dispose of at the direction of Bethesda, without charge, all
existing inventory of Licensed Product bearing the Licensed Marks within its
possession or control, all related materials bearing the Licensed Marks, and
instruments used for the purposes of affixing or displaying the Licensed Marks,
including, but not limited to, artwork, transparencies, negatives, dies, molds
and screens, for disposition by Bethesda, along with copies of all inventory
records relating thereto.

9.3.3 Except as otherwise permitted under this
Section 9, upon the expiration or termination of this Agreement, Interplay shall
cease to use the Licensed Marks in any manner and shall not thereafter use the
Licensed Marks, or any other trade name or trademark comprised in whole or in
part of any Licensed Mark or that is similar to any Licensed Mark.

9.3.4 Upon the expiration or termination of this
Agreement, Interplay shall, within ninety (90) days of the date of termination
or expiration of this Agreement wind down the operation of the FALLOUT MMOG and
terminate any and all User Agreements.

More things they could be in breach of.

10.0 INDEMNIFICATION. Interplay agrees to indemnify Bethesda and
its affiliates, parent and their respective directors, officers, agents and
employees and to hold each of them harmless in all respects, including
attorneys' fees, from and against any claims, demands, suits or causes of action
and resulting settlements, awards or judgments arising out of any act or alleged
activity of Interplay in connection with this Agreement including any defects or
alleged defects in the Licensed Product. This indemnity shall survive the
termination of this Agreement.

This is a wonderful clause and I'm not sure that it's legal as it basically states that Interplay cannot hold Bethesda financially responsible for any legal fees regardless of whether or not they are founded.

I may have missed something (I only glanced through it this time) but I did not see any statement of them retaining the right to distribute past Fallout games. They may be able to argue that since they were being distributed at the time of the agreement and Beth made no request for them to cease and desist nor hand over fiscal control/responsibility (9.3.2), but that's a stretch. I think Interplay is boned.

 

[Cimmerian Nights]

In other words, Interplay screwed the pooch.

 

[Ausir]

I may have missed something (I only glanced through it this time) but I did not see any statement of them retaining the right to distribute past Fallout games.

That's because, AFAIK, this was subject to a different agreement.

 

[UncannyGarlic]

That's because, AFAIK, this was subject to a different agreement.

That sounds right because I thought I remembered them having those rights. The 2004 agreement wasn't a sale of the entire IP, that happened in 2007. I don't see anything on the Vault's page about Interplay about a later agreement which allowed Interplay to continue to sell the Fallout games that they made but couldn't add to them or make any more. Still, I swear I had read something about it at some point. I don't really feeling like digging through the old news posts at the moment but I might later.

EDIT: So I had a chat with my brother and he confirmed what I thought, you can sue specifically for breach of contract. That suggests to me that they aren't suing Interplay over something that they did in violation of the contract that they signed (which is odd given the first lawsuit over trademark infringement which is specifically covered in the contract). I'm curious about the details.

 

[patriot_41]

Bethesda are on the way to actually destroying Fallout and leaving a neutered empty Oblivion clone with illusions of grandeur and references to previous references used in the originals. Oh wait, they already did it. They are now pissing on the corpse.

EDIT: *snip* Don't do that.

 

[SuAside]

"is this the end of Zombie Inneptplay?"

anyhow, it was a matter of time before Beth claimed theirs from the FOOL project. they're out of time and didn't get the prerequisite budget. so Iplay looses the rights to it, as stated in contract.

as for the rest? it was only a matter of time before they sued over the Fallout Trilogy thing, since it contains FO1, FO2 & FO:T, not 1, 2 & 3. that could very well be interpreted as false advertising. that really must've rubbed Bethesda the wrong way.

 

[Ravager69]

Wait, didn't Interplay retain the rights to distribute Fallout 1, 2, Tactics and BoS as they wish? I thought that only the rights to make Fallout 3, 4 and all spin-offs they want were sold to Bethesda.

Can someone elaborate without making me have to read that biurocratic nonsense-crap?

 

[Lexx]

Well, of course, Bethesda is not getting many Fallout-Fans as friends now... and I hate them for this too. But still, Interplay signed this, so they have been ok with it... and so it is somehow Interplay's fault.

 

[Verevoof]

How was the Fallout Trilogy trademark infringement? The fine print on the box says:

"Fallout (R), Fallout (R) 2 and Fallout (R) Tactics are trademarks or registered trademarks of Bethesda Softworks LLC, a ZeniMax Media company, in the U.S, and/or other countries. Distributed by Interplay under license from Bethesda Softworks LLC. All Rights Reserved."

Although, the box doesn't have Bethesda or ZeniMax's logo on it, just Black Isle and Interplay's... Or is it because the actual games' main screen says "Copyright (c) Interplay 1997. All Rights Reserved" and I'm guessing that Bethesda wasn't mentioned in the credits of the games either (didn't check the credits).

it was only a matter of time before they sued over the Fallout Trilogy thing, since it contains FO1, FO2 & FO:T, not 1, 2 & 3. that could very well be interpreted as false advertising. that really must've rubbed Bethesda the wrong way.

Yeah, I could see that, it would have been safer to call it "Fallout Collection" and I have seen in online reviews that a few people were disappointed that it didn't contain Fallout 3.

 

[randy Mc rupp]

I have seen in online reviews that a few people were disappointed that it didn't contain Fallout 3.

'a few' ?! That would be the whole Bethesda Xbox 360 kiddie fanbase.

 

[Ulysses]

For the Trilogy suit, I'm sure they have a case but it looks like them just being jerks (dumb consumers). Don't really like Interplay as is, but like Bethesda even less - so this whole thing stinks.

 

[SuAside]

Wait, didn't Interplay retain the rights to distribute Fallout 1, 2, Tactics and BoS as they wish? I thought that only the rights to make Fallout 3, 4 and all spin-offs they want were sold to Bethesda.

Can someone elaborate without making me have to read that biurocratic nonsense-crap?

all assets used for promotion and sale (such as publicity and box covers) were supposed to be approved by Beth before Iplay could release them.

why? simply because Fallout is now a Beth trademark and that bad publicity or semi-false ensnaring statements would reflect badly on said trademark.

as such, everything has to be OK'ed by Beth before release. Iplay however never sent any material for approval and now Beth is taking them to court over it.

 

[Ausir]

Unlike FOOL, this one will get them bad publicity. On Polish sites, pretty much all comments are now against Bethesda. To an outsider, it looks simply like Bethesda is trying to take away the original games from their makers.