Yesterday Interplay filed a motion to dismiss Bethesda's case against it because this particular court lacks jurisdiction over the subject matter, as, according to Interplay, it is essentially a contract dispute that happens to involve the use of trademarks, not a trademark infringement action.
“BSW has now sued Interplay alleging that Interplay violated the terms of one or more of the contracts between the parties by, for example, failing to obtain BSW's approval of marketing materials and failing to secure financing with respect to the development of the online game. While BSW has sued Interplay for breach of contract and for a declaratory judgment to the effect that Interplay violated certain terms of the contracts, it has brought this entire action in this federal court based on the trademark infringement provisions of the Lanham Act. In doing so, BSW has put the cart before the horse; this is not principally a trademark infringement case that happens to involve allegations of breach of contract. Instead, the heart and soul of this case are allegations of breach of contract that happen to involve trademark rights, among other things. Under these circumstances this Court lacks subject matter jurisdiction to hear this action.”
The document cites other similar cases where courts have dismissed the plaintiffs' trademark infringement actions because "the central determination to be made is whether the contract was breached."
Of course, even if this particular court has juristiction over this case, it doesn't mean that Bethesda cannot file it in a more appropriate one, but, if this motion is granted, it might give Interplay some more time.