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Bethesda: "Our arguments have been consistent". But have they?

Ausir January 12, 2011 User blog:Ausir
Bethesda vs Interplay

After Bethesda's claims that Interplay was only licensed the Fallout name for use in its Fallout MMO and Interplay's response, Bethesda has yesterday filed their own counterclaim to Interplay's counterclaim, which alleged that Bethesda's statements have been inconsistent. However, you can actually find an example of such an inconsistency below.

Bethesda repeats its original claim, based on their interpretation of the wording of the Trademark License Agreement (TLA). While Interplay argues that "Fallout brand" in the context of the agreement is not synonymous with "Fallout trademark", and was defined in the original Exclusive Licensing Agreement, and that the original intent was clearly for Interplay to create an actual Fallout game, and not "an online baseball game or poker game called 'Fallout'", Bethesda claims otherwise.

Ignoring these determinative facts, Interplay seeks to create confusion and ambiguity where none exists. Interplay’s opposition is in its entirety based on the unsupported contention that the term “FALLOUT-branded MMOG” is somehow “ambiguous.” Interplay seeks to introduce extrinsic evidence to alter the clear language and terms of the parties’ agreements. Parol evidence, however, is neither permitted nor warranted here. The term “FALLOUTbranded MMOG” is plain and clear on its face – it means an MMOG named FALLOUT. Bethesda gave Interplay a license to call its MMOG “Fallout” if it met the conditions of the TLA. (See Bethesda Mem. at p. 5.) Nothing else was licensed to Interplay. The APA and TLA also contain undisputed, unambiguous integration clauses prohibiting admission of extrinsic agreements or understandings.

While Interplay argues that sections 3.4 and 9.3.4 of the TLA support the interpretation that Interplay was granted the right to use elements of the Fallout setting, Bethesda states that the detailed accounting of elements of the Fallout-branded MMOG that Interplay would not be able to continue to use if it were not to satisfy the conditions of the license simply "confirms that Bethesda owns all Fallout intellectual property".

I. BETHESDA HAS NO DUTY TO ALLOW INTERPLAY TO USE ALL FALLOUT INTELLECTUAL PROPERTY ASSETS Neither the APA nor the TLA creates any duty or obligation on Bethesda’s part to allow Interplay the use of any Fallout related intellectual property assets which it unconditionally sold to Bethesda. In its opposition, Interplay fails to cite one single contractual provision in either agreement that would create such a duty. Instead, Interplay engages in a convoluted analysis of simple and straightforward agreements in a last-ditch effort to present parol evidence. Given the clarity of the relevant agreements, parol evidence is unnecessary and inappropriate. Dismissal of amended counterclaims I and II is warranted as a matter of law.

Bethesda states that Interplay never allowed Bethesda to view any Fallout Online development documents, even though Interplay, in its earlier filings, invited Bethesda representatives to view them, but objected to copying of the trade secret document and publicly submitting it as court evidence.

In the filing, it is also claimed that Bethesda had not raised the issue of Interplay not being allowed to use any Fallout-related assets earlier, suing for breach of contract on the grounds of not fulfilling the financial and development requirements, only because "Bethesda only recently learned of Interplay’s multiple infringements from Interplay’s public marketing materials". Interplay actually started releasing official materials using Fallout assets in June 2010, over 6 months before Bethesda made this claim. And proof of concept screenshots with super mutants and Nuka-Cola were admitted as court evidence back in 2009.

Bethesda also argues that Interplay should be denied additional discovery regarding the meaning and scope of the term "FALLOUT-branded MMOG". According to them, "For all the reasons discussed above, extrinsic evidence of intent is unnecessary, unwarranted and inappropriate here."

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