The Fallout litigation continues with Bethesda reportedly going to the US Court of Appeal over its claim for a preliminary injunction to restrain Interplay using the Fallout IP, including developing ‘Project V13’, Interplay’s rumoured Fallout MMO. Bethesda’s original claim for a preliminary injunction was rejected in December 2009 (our summary of the dispute is here).
We have not yet seen any information regarding the grounds of the appeal, though no doubt they will emerge on the blogosphere in due course, at which point we will be able to have a closer look at the legal arguments.
In the meantime, Duck and Cover has released partial transcripts of Bethesda’s last attempt to secure the preliminary injunction – which do not appear to have been particularly successful. The court’s formal judgment on the matter has not been released as far as we are aware, but from the transcripts of the actual arguments before the judge, it seems that Bethesda ran into difficulties with the judge over the exact reasons it sought a preliminary injunction. The judge’s reasoning appeared to be that the purpose of a preliminary injunction is to prevent one party from doing something until the court has time to establish whether it is legally entitled to do that thing or not – but if Interplay is not actually working on its Fallout MMO project then logically there would be nothing to temporarily ban them from doing. There were also issues regarding Bethesda’s claim of trademark infringement, which Interplay argued has no merit because there was never any breach of contract by Interplay and therefore it always owned the Fallout trademarks.
Now, some bloggers have derived from the above that Bethesda’s lawyers did not understand the purpose of preliminary injunctions. That is of course possible, but also seems somewhat unfair. A more likely explanation (assuming US preliminary injunctions are anything like their English counterparts, which seems very broadly right) is that they understand exactly what a preliminary injunction is for, understand that it could be an uphill struggle to win it at court, but they also understand that if they did win they could inflict serious damage on Interplay by effectively stopping them from doing anything with the Fallout IP for potentially quite a long time. In fact, in some cases obtaining preliminary legal relief from the court can bring the other side to the negotiating table or even cause them to fold altogether (although obviously that doesn’t necessarily mean that Interplay would have done either).
So it may simply be that Bethesda gambled and lost the first time around. Now, clearly, they would like another bite at the preliminary injunction cherry. It will be interesting to see if they fare any better this time around…
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