Bethesda: 'Interplay Is Wrong'

Interplay recently called Bethesda's interpretation of a Fallout MMO licensing agreement "absurd," and in a new court filing Bethesda has argued the terms of the agreement are "clear and unambiguous."
Fallout owner Bethesda Softworks argued in a Tuesday court filing that terms of a Fallout MMO licensing agreement with Interplay are clear-cut, and reaffirmed that Interplay cannot use any assets related to the Fallout universe, outside of the name "Fallout." Bethesda's filing -- obtained by Gamasutra -- is the latest development in a bitter legal battle between the two companies, which are fighting over licensing and purchase terms that were part of Bethesda's $5.75 million acquisition of the Fallout franchise from Interplay in 2007. As part of the Fallout licensing and purchase agreements, Bethesda bought the Fallout franchise and licensed the rights to a "Fallout-branded MMOG" back to Interplay, under certain conditions. Interplay is currently at work on an MMO based in the fictional Fallout universe. But in December, Bethesda claimed it licensed "one single asset" [emphasis Bethesda's] to Interplay, which was the "Fallout" trademark in connection with an MMO. Bethesda, developer of Fallout 3, contended that there is "no other license" included in the deal, and that any Fallout-branded MMO made by Interplay cannot feature any assets from the established Fallout universe, such as characters, settings or storylines. Interplay later called Bethesda's interpretation of the agreement "absurd." Interplay also asked the court for the opportunity to "present evidence to show the parties' intent with regard to the meaning of the term 'Fallout-branded MMOG,'" a term not clearly defined in the licensing agreement, Interplay alleged. But in the filing yesterday, Bethesda argued that the agreements are "clear and unambiguous," and that the company has "no contractual or other duty" to allow Interplay to use any Fallout assets outside of the name "Fallout." "The term 'Fallout-branded MMOG' is plain and clear on its face -- it means an MMOG named 'Fallout,'" read Bethesda's latest response to Interplay. "Bethesda gave Interplay a license to call its MMOG 'Fallout' if it met the conditions of the [trademark licensing agreement]. Nothing else was licensed to Interplay." Interplay had also previously argued that Bethesda only recently had a problem with the contents and scope of the in-development Fallout MMO. But Bethesda said it didn't argue against Fallout universe-related content in earlier hearings because the company "only recently learned of Interplay’s multiple infringements from Interplay’s public marketing materials." Bethesda in September 2009 originally sued Interplay for trademark infringement and for breaching the Fallout licensing and purchase agreements. The licensing agreement in particular required Interplay to have raised $30 million within 24 months of the original signing to fund development of the Fallout MMO and begin full-scale development of the game by April 2009, or else the license would be terminated. The agreement also required Interplay to launch the game within four years of signing. Bethesda said Interplay failed to meet those requirements; Interplay disagrees. For now, the legal focus is on the fictional Fallout universe itself. "Interplay offers a variety of meritless arguments to suggest that the plain reading of the [trademark licensing agreement] would render the agreement meaningless," Bethesda's latest filing added. "Interplay is wrong. Its arguments to the contrary should be rejected."

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