To recap, Interplay sold the Fallout IP to Bethesda in 2007 having retained certain rights, including the rights to develop a Fallout MMO. Bethesda has now commenced this (US) lawsuit arguing that Interplay is in breach of that agreement and has infringed Bethesdra’s trademark rights in the Fallout series. In particular, it seems that Bethesda is angry that Interplay sold the Fallout 1 and 2 games and expansions as a ‘Fallout trilogy’ at around the same time that Bethesda released Fallout 3.
The position now seems to be (courtesy of Game Politics) that Interplay has counterclaimed for Bethesda’s repudiatory breach of their agreement, apparently to the extent of claiming that the Fallout IP has reverted to Interplay and Bethesda now sub-licences the IP from Interplay (a complete reversal of the current position).
It’s worth taking all of this with a heavy dose of salt since (as far as we are aware) the relevant court documents have not yet been published on the net and therefore there is no way of being sure of the accuracy of any of this (unless one of Interplay or Bethesda make a press statement on this anytime soon).
That said, defending an action against you for breach of an agreement by counterclaiming yourself for breach of the same agreement is a standard litigation tactic, which it seems clear Interplay has decided to adopt in this case. Of course, the devil is in the detail: in order to substantiate a claim for breach of contract Interplay’s lawyers will need to set out in detail how the contract operated and exactly which provisions of that contract have been breached by Bethesda.
Of course, the main question from all this is what will eventually happen to the Fallout IP. If Game Politic’s report is accurate, then Interplay is not just arguing for damages for breach of contract, but a version of the Fallout IP back to it in some way – which is by no means impossible in theory, but it will be interesting to see how they play that argument out. Keep watching this space…