Bethesda and Interplay reached a settlement agreement regarding the “Fallout” trademark back in the January of 2012. The origins of this dispute trace back to September 8, 2009, when Bethesda filed a complaint alleging that Interplay had, among other things, participated in trademark infringement, unfair competition, false designation of origin, and breach of contract. Interplay filed its answer in October of 2009 along with counterclaims that include breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious interference with prospective economic advantage.
When the “Fallout” mark was first issued on August 8, 1998, Interplay had ownership and developed, manufactured, and distributed three games using the mark: “Fallout,” “Fallout 2,” and “Fallout Tactics: Brotherhood of Steel.” Interplay entered an Exclusive Licensing Agreement with Bethesda during June 2004 which gave Bethesda the exclusive license rights “to future uses of the Fallout property and its associated trademark.” On April 4th of 2007, Bethesda and Interplay entered an Asset Purchase Agreement (“APA”) and a Trademark License Agreement (“TLA”). Under the APA, Bethesda could purchase the rights to the Fallout mark for $5,750,000 while Interplay retained its exclusive right to manufacture, have manufactured, sell, and distribute the preexisting Fallout games. The TLA allowed Interplay to create a Massively Multiplayer Online Game around the Fallout franchise under two conditions: 1) Interplay must begin the “full-scale development of its FALLOUT MMOG” and 2) Interplay must have “secured financing for the FALLOUT MMOG in an amount no less than $30,000,000” by April of 2009. If Interplay failed to meet these two conditions, the TLA provided that Interplay would have to forfeit its license rights. When Interplay refused to relinquish its licensing rights and insisted on creating a Fallout MMOG through Masthead Studios, Bethesda initiated this lawsuit.
In the January of this year, Bethesda and Interplay finally reached a settlement in this trademark dispute. Bethesda now owns the rights to create a Fallout MMOG and Interplay has forfeited any right to Fallout intellectual property. Interplay will be allowed, however, to manufacture, sell, and distribute the preexisting Fallout games through 2013.