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Bethesda Amends Interplay Suit, Attempts To Restrict Use Of  Fallout  IP
Bethesda Amends Interplay Suit, Attempts To Restrict Use Of Fallout IP
December 23, 2010 | By Kris Graft

December 23, 2010 | By Kris Graft
More: Console/PC

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 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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Maurício Gomes
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Now Bethesda is being an ass toward players.

Seriously, Bethesda really want the Fallout MMO to be named Fallout and have nothing to do with it? It is like shotgunning your own foot (and will turn Bethesda into the butt of more jokes than only Horse Armour).

Kris Graft
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You're entitled to your opinion... but seriously, bringing up the horse armor thing? :P

Pawel Dembowski
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Well, Horse Armor never gets old. :)

Dave Endresak
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Actually, as I understand the original agreement, Bethesda purchased all rights to Fallout from Interplay. Therefore, Interplay is the company who is "being an ass" not Bethesda. You cannot sell something to someone else, let them invest their own money, time, energy, and effort promoting it and reinventing it, and then cash in on their investment by offering related products.

Maurício Gomes
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You people don't got my point...

It is not a question of who is "right" in the justice sense.

Fallout IP belongs to Bethesda. Fallout 3 fans associate Fallout with Bethesda.

If Bethesda do his best to make the Fallout MMO frustate fans, fans will become frustated with Bethesda, not with Interplay.

Stephen Northcott
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Well, I think it is exactly the kind of confusion you are talking about that Bethesda are trying to prevent.

Putting the legal stuff to one side as you suggest, and assuming that people do indeed associate all that is "Fallout" with Bethesda then you kind of make their case for them.

Imagine if Interplay manage to produce a rather lacklustre MMO which is indistinguishable from Bethesda's Fallout because of the branding. That also will reflect badly on IP that Bethesda has worked hard, and spent a lot of cash to promote.

I think a good solution would be for Bethesda to chuck a bit more cash Interplay's way on the understanding that they forget about Fallout entirely. I don't think Interplay will do that though, as they are looking to cash in on hard work that is not theirs.

Maurício Gomes
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But Interplay is trying to use stuff they designed in first place.

Yes, Bethesda helped a lot, but it was the deal, Interplay agreed to sell Fallout to Bethesda if they could make their dream Fallout MMO game, using the universe they invented... It is not like they are stealing something.

Mark Venturelli
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Whoever is responsible for Fallout is already long gone from Interplay.

I really think Bethesda is wrong on this matter, but I hope Interplay gets crushed by them. Else, they will make the worst game to ever bear the Fallout name since that PS2 atrocity.

Kevin Reese
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It just seems a shame to me that all those lawyer fee's can't be used to develop the game instead. Can't we all just get along? :)

Stephen Northcott
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Agreed. That does sound like a much better idea.

But unfortunately, as Dave points out, Interplay are being opportunistic.

You can't sell something, and then change your mind and start using it again.

Frankly, without Bethesda resurrecting Fallout, Interplay would have nothing to be an ass about.

ferret johnson
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Yes, Bethesda resurrected fallout. But so what? m

So their 'deal' was only good if Fallout wasn't successful? Then Interplay could make an MMO? But if FO was successful, Interplay can't? That makes no sense.

Interplay has the right to make an MMO independent of the success of Beth's FO. It just so happens it was successful.

Chris OKeefe
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Hey Gamasutra. Why even have a comment box available to type in if you are just going to delete everything when you ask the poster to log in first.


I guess I will make this short, then.

Bethesda are kinda of being jerks about this. Interplay has the right to make a Fallout game, I don't think they were ever under the impression that 'making a Fallout game' really only amounted to using the title, and not the source material. It's hard for anyone to say whether that's in the language of the contract.

Either way, Bethesda is going gung-ho trying to sink this ship, and for a company that is practically a walking corpse, that just seems like kicking the dog when he's down. Bethesda really has nothing to lose by letting Interplay make an actual Fallout MMO that is true to the material - unless Bethesda decided after the fact that a Fallout MMO would be something they would like to do. Which is kind of a dick move.

There's only a handful of outcomes here.

1) Bethesda lets Interplay make a true Fallout MMO. It does decently and the brand is richer for it. More people get into the Fallout world and Bethesda's market grows. Since Bethesda only licensed Interplay for one game, they presumably could charge royalties for expansions and the like.

2) Bethesda lets Interplay make a true Fallout MMO. It fails, either because it's bad or because it's mediocre and nobody is playing it. Players turn to Bethesda for Fallout products and Bethesda gets some free market research.

3) Bethesda kneecaps Interplay's production, but the MMO is made regardless. If it does poorly, fans blame Bethesda for ruining a treasured IP and the one chance for a true Fallout MMO. Bethesda looks like jerks.

4) Bethesda sinks Interplay and the production of the title is cancelled. Fans blame Bethesda for killing an anticipated title for their own greedy self-interest.

Obviously there's plenty of variation possible, but that's sort of the basic set of options.

My guess is that Bethesda wants to look into making their own MMO, and this is their way of keeping their options open. Again, kind of a dick move.

Nashnir N
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It is funny how you show Bethesda loosing if it halts Fallout MMO production.

I am with Bethesda on this one. As Dave Endresak and Stephen Northcott said, you don't sell an item, let the other party re-invent it then use the new design to promote your product.

Bethesda currently hasn't announced or even hinted on bringing out a Fallout MMO. There is no loss for them if interplay makes a hit game or not. Cause either way people will return to Bethesda for anything other than the MMO related to the Fallout Universe.

The way I see it Bethesda is just not happy with Interplay taking shortcuts.

Maurício Gomes
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So, what Interplay should do? How you make a Fallout game without any fallout reference?

Chris OKeefe
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They gave Interplay the rights to make a Fallout game and are nitpicking over the details.

Why shouldn't Interplay be able to make a Fallout game including the content? They did, after all, originally design the entire world. It's not like some random third party is trying to steal a slice of the pie. Interplay created the Fallout universe, they sold the rights to that world to Bethesda under the condition that Interplay could use the brand to make a single game, and now Bethesda is telling them that they only get to use the *name* Fallout.

I don't see how this is a shortcut, it was part of the frigging -deal- they made. Bethesda is just tighting its grip on the language of the contract and saying they never said Interplay could use anything other than the name Fallout. Sounds like they're pulling a fast one to me. And it sounds like Bethesda is trying to sink Interplay with court fees over it, which is pretty sleazy.

ferret johnson
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"As Dave Endresak and Stephen Northcott said, you don't sell an item, let the other party re-invent it then use the new design to promote your product."

But that is EXACTLY what they agreed upon beforehand. So, yes, they can do it.

Todd Boyd
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So... essentially, they just sold them the name?! "Here's the name, Fallout. You can make a game with it, but it ABSOLUTELY CANNOT BE A FALLOUT GAME." How does that make any sense?

Dragos Inoan
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The whole problem here is that it's not Obsidian doing the Fallout MMO, but some other people. Interplay is just the old publishing company, and even that just in name.