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Bethesda Loses Again In Fight Against Fallout MMOG

By - Source: LA IP Trademark Attorney Blog | B 34 comments

Bethesda went after Fallout MMOG co-developer Masthead Studios and lost.

This week Bethesda received another blow by the courts in its battle with Interplay over the Fallout MMOG (aka Project V13) project. This time Bethesda was denied its bid for a temporary restraining order against the game's co-developer, Masthead Studios.

The fight over the MMOG seemingly began back in April 2007 when Bethesda and Interplay entered into an asset purchase agreement where all rights in the Fallout trademarks and copyrights were assigned to Bethesda in exchange for $5.75 million USD. The company then licensed out the rights to develop a Fallout MMOG to Interplay, but under certain conditions. If Interplay failed to meet those conditions, then the agreement would be terminated.

"Subject to the terms and conditions set forth in this Agreement, Bethesda grants to Interplay an exclusive, non-transferable license an right to use the Licensed Marks on and in connection with Interplay’s FALLOUT-branded [Massively Multiplayer Online Game] MMOG (the “FALLOUT MMOG” or “Licensed Product”) and for no other purpose," the agreement stated. "The conditional license herein does not grant Interplay any right to sublicense any of the licensed rights without Bethesda’s prior written approval."

But in September 2009, Bethesda filed a lawsuit against Interplay claiming that the studio violated their agreement because the project had not yet taken off in April as agreed. Interplay counter-sued, stating that interrupting was against the original contract of the sale of the Fallout IP, thus making the sale obsolete. A U.S. District Court judge eventually denied Bethesda's motion for a preliminary injunction against Interplay.

Not giving up, Bethesda filed another suit against Interplay in January 2010 stating that the licensing deal it made with Interplay only allowed the developer to use the Fallout name for the MMOG, nothing else. The company filed its injunction against Interplay just six months before the Fallout MMOG would go into testing.

Naturally Interplay disagreed with Bethesda's interpretation of the agreement. "For at least four years, Bethesda has known that Interplay interpreted its right to create the Fallout-branded MMOG to include copyrighted content from the Fallout universe in order to make the MMOG a recognizable Fallout game," Interplay stated in a court filing. "Bethesda never objected and did not seek an injunction because it knew Interplay was doing exactly what the parties intended under their agreements."

As previously stated, Bethesda also went after Fallout MMOG co-developer Masthead Studios, repeating the same claims as before: that Interplay had improperly sub-licensed Bethesda’s intellectual property, and that Bethesda “granted Interplay a conditional license to use only the ‘FALLOUT’ trademark and nothing more relative to a Fallout-branded MMOG. Bethesda did not provide Interplay with any license to use any copyrighted materials relating to Fallout -- all copyrighted materials were retained exclusively by Bethesda."

Bethesda said it has gone after Masthead because its duties under the Interplay agreement is both "a direct and contributory infringement of its copyrights and filed for a temporary restraining order."

But without even listening to Masthead's opposition, a U.S. District Judge, the Honorable John F. Walter, denied the temporary restraining order. "[Bethesda] has not demonstrated that it will be irreparably prejudiced if the requested ex parte relief is not granted, or that it is without fault in creating the crisis that requires ex parte relief," he argued. "Indeed, [Bethesda] was aware as early as February 2011 that Masthead was potentially infringing its copyrights... Yet, Plaintiff waited seven months to apply for ex parte relief."

"The Court finds that Plaintiff unreasonably delayed in seeking relief, and that the emergency that allegedly justifies a [temporary restraining order] is self-created," he concluded.

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Top Comments
  • 23 Hide
    Anonymous , September 24, 2011 9:50 AM
    This is not the way you keep customers! Please do not make me boycott you too Bethseda, my list of developers and publishers is getting very short these days!
  • 18 Hide
    tanjo , September 24, 2011 10:57 AM
    Fallout without vaultsuits and powerarmors? WTH???
  • 14 Hide
    IndignantSkeptic , September 24, 2011 1:34 PM
    requiring them to use only the Fallout name and nothing else from the Fallout games just does not make sense. it would be deception against their customers if they did that.
Other Comments
    Display all 34 comments.
  • -3 Hide
    professorprofessorson , September 24, 2011 9:34 AM
    HAHAHAHA @Bethesda and their stupid bug ridden games.
  • 23 Hide
    Anonymous , September 24, 2011 9:50 AM
    This is not the way you keep customers! Please do not make me boycott you too Bethseda, my list of developers and publishers is getting very short these days!
  • 18 Hide
    tanjo , September 24, 2011 10:57 AM
    Fallout without vaultsuits and powerarmors? WTH???
  • 3 Hide
    techguy911 , September 24, 2011 11:38 AM
    Well they have a point look what happened to stargate online and star trek online they were put so far behind schedule and it was vaporware for the longest time they ended up loosing money on IP in the long run
    .
    They ended up pulling the IP licensing agreement and giving it to other developers if they can't do the job right get someone who can!.

    I really like fallout and have been waiting for an online version forever it has to be done right or not at all.
  • 7 Hide
    reggieray , September 24, 2011 12:52 PM
    professorprofessorsonHAHAHAHA @Bethesda and their stupid bug ridden games.

    Fallout had its' problems but is a great game, Oblivion was much more stable. Hope SkyRim is stable.
    I did find Fallout 3 to work much more stable under XP than Win 7 64. Oblivion will not even run under my 7 64 big rig.
    Sounds to me Bethesda wanted it both ways, get the license money but no MM game for Interplay. Bethesda wanted to micromanage Interplay and their business, I call the BS flag on that and side with Interplay.
  • 14 Hide
    IndignantSkeptic , September 24, 2011 1:34 PM
    requiring them to use only the Fallout name and nothing else from the Fallout games just does not make sense. it would be deception against their customers if they did that.
  • 0 Hide
    Anonymous , September 24, 2011 4:03 PM
    Parrish: judges don't "argue." Judges "find," "hold" and "order." Lawyers argue. Bethesda's lawyers are overpayed hacks who just aren't very good at it because getting a TRO is EASYMODE.
  • -7 Hide
    gsxrme , September 24, 2011 4:53 PM
    Bethesda programmers just suck, All of there games a slow and buggy. Like i said in the past if they just used the Unreal3 DX11 engine the game wouldn't suck the living sh!t out of the computers resources.
  • -6 Hide
    gsxrme , September 24, 2011 4:55 PM
    Too add on, All of there games graphics aren't that great and shoot and hitting things just doesn't feel realistic. It feels like your hitting air.
  • -5 Hide
    vigilante212 , September 24, 2011 4:58 PM
    Let interplay do what they do best make great Fallout games. Bethesda's take on fallout was ok, but New Vegas was so buggy they should be ashamed of themselves especially since it was pretty much just a new map and quests stuck on to the old architecture they used for Fallout3.
  • -3 Hide
    hpglow , September 24, 2011 5:16 PM
    Vigilante212Let interplay do what they do best make great Fallout games. Bethesda's take on fallout was ok, but New Vegas was so buggy they should be ashamed of themselves especially since it was pretty much just a new map and quests stuck on to the old architecture they used for Fallout3.

    Interplay published the best Fallout games. Troikia made them, and since they are no more Interplay has no chance of making another good Fallout.
  • 7 Hide
    Blessedman , September 24, 2011 6:05 PM
    it also doesn't sound like they sub-licensed anything, they hired a developer to develop a license they hold. This is common practice, is it not? They are contracting out the work that they themselves either can't or don't want to do. If they didn't want interplay to develop a MMOG based upon the FALLOUT license then why did they agree to the terms?!
  • 4 Hide
    NuclearShadow , September 24, 2011 8:10 PM
    Blessedmanit also doesn't sound like they sub-licensed anything, they hired a developer to develop a license they hold. This is common practice, is it not? They are contracting out the work that they themselves either can't or don't want to do. If they didn't want interplay to develop a MMOG based upon the FALLOUT license then why did they agree to the terms?!



    When they bought the Fallout franchise rights from Interplay with the exclusion of a MMORPG they never actually took Interplay seriously.
    Fallout itself was sold for a measly million dollars (which surprises me that the original Black Isle team didn't band together and purchase it themselves while forming Obsidian) Bethesda thought Interplay would never
    be able to gather the needed funds to actually make the MMO.
    But they shocked the world and beat the odds and did. So Bethesda does what any rational company does in our awesome capitalist world.... sue and harass in court!
  • -2 Hide
    lordstormdragon , September 24, 2011 10:01 PM
    professorprofessorsonHAHAHAHA @Bethesda and their stupid bug ridden games.


    (laughs too!) Professors and their weak, underpowered computers... Oh, that's rich.

    Don't complain about a buggy game when you're running an old MacBook Air with integrated graphics...
  • 0 Hide
    psychobob , September 24, 2011 11:19 PM
    Interplay still exists? Maybe they can remake Neuromancer
  • -2 Hide
    zakmckracken , September 25, 2011 12:23 AM
    Vigilante212Let interplay do what they do best make great Fallout games. Bethesda's take on fallout was ok, but New Vegas was so buggy they should be ashamed of themselves especially since it was pretty much just a new map and quests stuck on to the old architecture they used for Fallout3.


    One note about that: Fallout New Vegas was made by Obsidian, just distributed by Bethesda. But, yes, the engine for that game (and FO3) had many bugs.
  • 0 Hide
    lordstormdragon , September 25, 2011 1:37 AM
    zakmckrackenOne note about that: Fallout New Vegas was made by Obsidian, just distributed by Bethesda. But, yes, the engine for that game (and FO3) had many bugs.


    How many bugs did it have, exactly? It played fine even on my older rig (Athlon X2 with a 7950GT, Win7), and ran even better on my newer one (Phenom X4, GTS250, Win7). It was beyond stable, even with tons of mods. To say it had many bugs kinda requires some qualifying examples as well as the hardware you were running it on. Like I said before, Intel integrated graphics don't count when assessing "bugs".
  • 0 Hide
    zakmckracken , September 25, 2011 1:52 AM
    lordstormdragonHow many bugs did it have, exactly? It played fine even on my older rig (Athlon X2 with a 7950GT, Win7), and ran even better on my newer one (Phenom X4, GTS250, Win7). It was beyond stable, even with tons of mods. To say it had many bugs kinda requires some qualifying examples as well as the hardware you were running it on. Like I said before, Intel integrated graphics don't count when assessing "bugs".


    I agree that Intel IGPs don't qualify for gaming performance testing. I ran FO3 with a C2D 2.2GHz E6300 (and later upgraded to 3.0GHz C2D), 9800GX2 (which may have induced some SLi bugs) and later GTX 285, Win 7. To be honest, FO3 bugs I experienced were mostly me or others being stuck in the ground or rocks.

    My current setup is i7-2600k, GTX 570, Win 7. The bugs I've encountered in New Vegas include terrible stuttering around people but not creatures (doesn't seem to be an issue anymore, but was really bad upon release) being stuck in rocks, items disappearing, CTDs when speaking to some of the wandering merchants, and ALL saves being corrupted after one of those CTDs.
  • -2 Hide
    lordstormdragon , September 25, 2011 2:03 AM
    Fair enough Zack, you had some issues with an older GPU and CPU. But given the engine itself (which is what you stated had bugs) worked fine in FO3, and your issues were with New Vegas, can you say it was the engine itself at fault? It would appears to be lack of cell-testing in New Vegas, rather...

    Just sayin'. Almost all games have some bugs, but most have far more than Fallout or Oblivion.
  • -4 Hide
    killbits , September 25, 2011 4:45 AM
    I would be really pissed if they came out with a mmog called Fallout that didn't have anything to do with the actual fallout universe.

    however, i would be way, way more pissed if they came out with a mmog set in the fallout universe that really sucked balls, which is exactly what's going to happen.

    all of you guys standing up for interplay are going to be really disappointed when this game ends up looking, playing, and feeling like complete shyte
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