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Bethesda Amends Interplay Suit, Attempts To Restrict Use Of Fallout IP

The dispute between Bethesda and Interplay over Fallout franchise rights continues, as Bethesda moves to block Interplay's use of recognizable Fallout icons in its MMO.

Kris Graft, Contributor

December 23, 2010

3 Min Read

The dispute between Bethesda and Interplay over Fallout franchise rights continues, as the companies target one another with amended complaints and counter-complaints. According to the latest round of court documents -- obtained by Gamasutra -- Bethesda aims to make it exceedingly difficult for Interplay's Fallout Online to contain any references to the known Fallout universe at all, in both marketing materials and the MMO itself. Bethedsa bought Fallout in 2007 for $5.75 million, and licensed the Fallout MMO trademark back to Interplay, under certain conditions. On November 19, Fallout property holder Bethesda said in an amended complaint that Interplay is illicitly using Fallout assets to market Fallout Online. Specifically, Bethesda recently took issue with Interplay using the Fallout logo and the "Vault Boy" icon to market Fallout Online on the Fallout-On-Line.com website. The website features other recognizable Fallout symbols like the two-headed Brahmin cattle, the mention of the Fallout character "Harold" and other icons of the series. Bethesda said that in June, Interplay sought approval for the materials used on the website, and then rejected the request. But Interplay allegedly went ahead and put the website live anyway, using the rejected material. In a December 3 answer to Bethesda's amended complaint, Interplay said it is conducting itself in line with Fallout licensing and purchase agreements, stating, "Interplay denies plaintiff's right to use the Fallout mark is exclusive." Interplay also amended its own countersuit against Bethesda, stating that Bethesda breached the asset purchase agreement for the Fallout property and the Fallout Online licensing agreement by trying to cancel the deals. Bethesda fired back in a December 20 court filing: "Interplay contends, without any support in either the Asset Purchase Agreement ('APA') or the Trademark License Agreement ('TLA'), that Bethesda has breached some obligation to allow Interplay the continued use of all Fallout intellectual property, the very assets that Interplay sold to Bethesda absolutely, unconditionally and without reservation under these agreements, years ago." "The APA and TLA are clear -- no such duty exists. There has not been and cannot be a breach. Dismissal [of the counts] in part for failure to state a claim is appropriate," the company contended. Bethesda argued in the same filing that it licensed "one single asset" [emphasis Bethesda's] to Interplay, which was the "Fallout" trademark in connection with an MMO. Bethesda contends that there is "no other license" included in the deal. The Fallout 3 developer said Interplay "relinquished all right, title and interest in all other Fallout-related intellectual property" when it sold the IP, which Bethesda said "solely and exclusively belong[s] to Purchaser [Bethesda]." Bethesda filed suit against Interplay in September 2009, accusing Interplay of trademark infringement involving the sale of Fallout games prior to Fallout 3. In the original suit, Bethesda also claimed that the Fallout MMO did not garner enough funding ($30 million minimum) and failed to ramp up to "full scale" development by an agreed-upon time, allegedly breaching contract. [Thanks to The Fallout Wiki Vault for the tip-off.]

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About the Author(s)

Kris Graft


Kris Graft is publisher at Game Developer.

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