So says Interplay...
In their latest round of court filings, which DAC has obtained, Interplay is claiming that the court lacks jurisdiction to proceed with the case.
This Court lacks subject matter jurisdiction to consider this case and the action must,
therefore, be dismissed. This case is nothing more than a contract dispute that happens to
involve the use of trademarks. As such, the claims and allegations at issue do not arise under the
Lanham Act but, instead, they arise under, and will be disposed by, interpretations of the
contracts involved. Therefore, this action is a state court action that this Court cannot decide.
In addition, Interplay is claiming that one of Bethesda's affidavits is complete BS and should be thrown out. They claim that the affidavit of James Leder is "based on information and belief, rather than personal knowledge," and should be thrown out.
There are a few points in Leder's affidavit that Interplay has issues with, particularly:
As a result of the inherent distinctivness of the FALLOUT Mark, and the efforts of Bethesda to finance, develop, advertise and promote "Fallout 3" over several years, Bethesda's customers and the public in general have come to know and recognize the FALLOUT Mark and to associate the Mark with Bethesda.
Ummmmmmmmm, I don't know about you, but when I think of the word "Fallout," this is the first thing that comes to mind:
More on this later when I get home from work and have time to transcribe more of the doc.
And I'm back home from work and have had a proper read through the documents. There's not much else worth posting from the anti-Leder argument. Interplay picks apart the Leder Affidavit pretty thoroughly, much like Roshambo picking apart a noob's argument on the forums.
There is one particularly intersting bit in the motion, though, which backs up pretty well Interplay's argument to have the Leder Affidavit thrown:
Rule 602 of the Federal Rules of Evidence provides that "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."
The entire affidavit and the specific portions of the Leder Affidavit cited above, are all made on information and belief, and are therefore lacking in personal knowledge. The entire affidavit, or alternatively, the inadmissable portions of the declaration should be stricken. This will result in an insufficient showing that Bethesda is entitled to a preliminary injunction.