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Interplay motions to strike, Bethesda opposes

Ausir December 10, 2009 User blog:Ausir
Bethesda vs Interplay

On November 25, Bethesda filed an affidavit of ZeniMax Executive Vice President James L. Leder as evidence in the Bethesda v. Interplay case, which includes claims that the names Fallout Trilogy, Saga Fallout and Fallout Collection were never used prior to 2009 (this claim is entirely untrue), claims that Project V13 is a or claims that everyone associates Fallout with Bethesda now, like this one:

As a result of the inherent distinctivness of the FALLOUT Mark, and the efforts of Bethesda to finance, develop, advertise and promote "Fallout 3" over several years, Bethesda's customers and the public in general have come to know and recognize the FALLOUT Mark and to associate the Mark with Bethesda.

In a court document filed on December 9, Interplay motioned for the Leder Affidavit to be stricken (and if not possible for portions of it to be stricken), since it is based on "information and belief" rather than personal knowledge, is speculative and contains unfound conclusions.

Now, Bethesda filed an opposition to this motion.

First, all of the statements made in the Leder Affidavit are made upon Mr. Leder’s personal knowledge, based on his experience as an executive of the company and having been directly involved in the company’s efforts relating to the protection and promotion of the Fallout brand as well as in the events leading up to the dispute in this lawsuit. To the extent that certain statements in his affidavit were made “upon information and belief,” they were made based on facts known to Plaintiff (and, in his role as Chief Operating Officer, Mr. Leder) at the time of the filing of the Complaint and Motion for Preliminary Injunction, and on good faith belief based on publicly available information which could not be reasonably verified without discovery because the information was the type that was uniquely within Interplay’s control. For example, prior to any discovery from Interplay, Bethesda did not have any way of independently verifying whether “Project: V13” was “a code-name for an MMOG other than the Fallout MMOG” (Leder Affidavit ¶ 13), or whether “Project: V13” was a reference to “Vault 13” (id. ¶ 14), or whether “Interplay began packaging, advertising and promoting the sale of ‘Fallout Trilogy’ after Bethesda’s launch of ‘Fallout 3.’” (Id. ¶ 15). Rather, such statements were based on Mr. Leder’s personal knowledge gained through his role as COO, and on inferences drawn from information received by virtue of that role. Just because good faith allegations are made on “information and belief” does not mean that such statements were not based on personal knowledge of the affiant. Second, Interplay has taken full advantage of the opportunity to test the basis of Mr. Leder’s knowledge and statements contained in his affidavit in a deposition lasting over seven hours on December 9, 2009. Mr. Leder will also be testifying as Bethesda’s only witness at the preliminary injunction hearing and, in that capacity, Interplay will once again have the opportunity to cross examine him and test the basis and depth of his personal knowledge. To the extent that Interplay suggests that Mr. Leder’s affidavit is somehow the only evidence upon which Plaintiff must meet its burden of proof for purposes of a decision on the preliminary injunction is flatly wrong.

Bethesda also claims that, even if the affidavit were to be proven inadmissible at trial, the governing law is that the court "can and should consider even inadmissible evidence in deciding a motion for preliminary injunction".

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