Fallout MMO's Contract Is "Clear And Unambiguous" Claims Bethesda, Interplay Disagrees


Posted January 17, 2011 - By Nikole Zivalich

Fallout 3

The battle between Bethesda and Interplay continues as Bethesda filed a motion to dismiss Interplay's counterclaim. Bethesda stands by their initial claim that the contract for the Fallout MMO did not include any of the assets from previous Fallout titles. This is a response to Interplay's request to the courts for the chance to "present evidence to show the parties' intent with regard to the meaning of term "Fallout-branded MMOG," as the term was not clarified in the contract. Bethesda went on to say the contract was "clear and unambiguous" and they had "no contractual or other duty" to permit the use of any Fallout properties to Interplay. The motion to dismiss was denied.

Interplay has until February 7th to deliver the documents the court want which include.

  • The monthly sales of pre-existing Fallout games worldwide, including Fallout Trilogy, in dollars and units in order to establish any damages from Bethesda’s trademark infringement claim
  • A response to “contention interrogatory” that seeks to glean the factual basis for Interplay’s claim that it complied with the Trademark License Agreement’s (“TLA”) financing provision
  • Facts concerning any financing it secured after April 4, 2009 and any development efforts after the same date
  • Documents documenting the company's relationship with Interactive Game Group and Masthead Studios
  • The long-form agreement with Masthead Studios
  • Documents concerning packaging for the Fallout games
  • Documents concerning distribution for the Fallout games
  • Documents relating to Interplay’s affirmative defenses of estoppel, waiver, ratification, acquiescence, consent, laches, and unclean hands
  • Documents relating to Interplay’s counterclaim
  • Documents relating to Glutton Creeper, an Interplay licensee

Confused? Me too. Keep reading to get up to speed on the case.

Bethesda's initial suit was filed in September of 2009 and accused Interplay of breaking the terms of their contract to make a Fallout MMO. They sought a temporary injunction on the project but the request was denied. The suit has been ongoing since. Bethesda claimed their contract with Interplay would only allow them to use the Fallout name for their Fallout MMO and using any other properties from the game was breach of contract. Interplay found the accusations to be "absurd" citing there would be no point in making a game with the Fallout name without the Fallout world.

Besthesda of course disagreed. "A Fallout-branded MMO" means nothing more than a MMO called Fallout, and Bethesda was under no contractual obligation to let Interplay use their creations.  Bethesda also clarified the reason for not filing a complaint sooner was they were unaware of Interplay's intentions until they received promotional material for the game.

Interplay and Bethesda have been at odds for a while. Back in 2007 Bethesda bought the rights to the Fallout franchise for $5.57 million from Interplay. The rights to the MMO were given back to Interplay under the strict condition they would begin working on the game within 24 months after the date of agreement. During this time they had to secure $30 million for the project. They also had to release the MMO within four years. Once the game is released Bethesda would earn 12% of sales and subscriptions. Bethesda claims Interplay has failed to meet these terms as well, Interplay disagrees.

Interplay is also claiming that Bethesda is interfering with their existing digital download deals by with GameTap, GOG, and others by sending letters saying Interplay has no rights to the Fallout titles which would constitute unreasonable interference and withholding of permission. They argue this would make Bethesda the company that is in breach of contract. If this was the case the old contract would be in effect; it only gives Bethesda the rights to publish three Fallout games.

The real victim in this legal mess are the gamers. No matter the outcome it doesn't look we'll be seeing a Fallout MMO anytime soon. I watch a ridiculous amount of Law & Order and I still don't know which side it right. Any thoughts?

Fallout MMO's Contract Is "Clear And Unambiguous" Claims Bethesda, Interplay Disagrees


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