Duck and Cover has posted a partial transcript of the preliminary injunction hearing in which Bethesda tried and failed to have Interplay blocked from selling the Fallout Trilogy and continuing work on the Fallout MMOG.

Yes, it’s old news: The court denied Bethesda’s request for a preliminary injunction against Interplay back in mid-December. But the transcript provides an interesting look at the courtroom drama taking place between the past and present Fallout masters.

Mr. Marbury, representing Bethesda, claimed that because Interplay has not begun “full scale development” of the Fallout-based MMOG, it is in breach of contract and thus, I gather, violating Bethesda’s trademark by continuing to promote the game. “It’s pretty clear that there’s been no full scale development at any time by this company, or by Masthead. This company has seven employees right now. They can’t do it, and it appears that the Bulgarian company, who is already busy with another game, isn’t doing it,” he said. “So, with those two conditions not met, those rights automatically are exterminated, or terminated, and that’s what the parties agreed to. So that’s the trademark license agreement issue on the MMO.”

The judge questioned the need for the preliminary injunction in the first place, however, when according to Marbury himself, Interplay can’t do and isn’t doing what Bethesda wants it not to do. “In terms of preliminary injunctive relief on that, if they’re not doing it and they don’t have the financing, what is it that you need in terms of preliminary injunctive relief?” he asked. “They haven’t put it up on the web. I mean, this is where the two sort of blur. They took it down. They’re not advertising to anybody that they’re developing it. What is it you need them to stop immediately, as opposed to once you prevail?”

Interplay’s man Mr. Gersh, meanwhile, took the position that until the court decides that the contract between Interplay and Bethesda has been breached – which he denied – there could be no trademark infringement. “The first thing that you have to decide is has there been a breach of contract, and I still think that it’s a subject matter jurisdiction. I’d still ask the Court to consider it, even though you’re not going to do it this morning, because I believe that the cart has been put before the horse here,” he said. “Until you decide whether there’s been a breach of contract, which is more a state law issue in the cases that we raised, you can’t get to whether there has been trademark infringement.”

Also noteworthy is Marbury’s claim that Bethesda is not currently working on a Fallout-based MMOG itself because it’s waiting for the court to finalize the question of rights to the property. “But to the extent that the rights have been terminated, we would have an interest in developing it at some point and in order to do that we need clarity about what the rights are and what they’re not,” he added.

It’s a bit dry, all in all; there’s no Law & Order-style theatrics or Night Court zaniness to liven up the action and the legalese can be a bit thick in places. For fans of the series or anyone looking to place a bet on the outcome of the case, though, it’s a great conversation starter. Read the whole thing at

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