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More transcripts from Interplay v. Bethesda [ Company -> Article ]
Posted by King of Creation | Related News Items Thu 14 Jan 2010, 5:13 AM
News related to Top Story: Bethesda v. Interplay: Transcripts | More info on Company: Bethesda v. Interplay

DAC has obtained more transcripts from the Interplay v. Bethesda preliminary injunction hearing. Again, Mr. Gersh is Interplay's lawyer and Mr. Marbury is Bethesda's. If you haven't been following the court case in the news the whole time, the TLA is the Trademark Licensing Agreement and the APA is the Asset Purchase Agreement.

If you missed it, Part 1 (opening statements) can be found here.

Again, I'll do a little bullet-point synopsis for you:

  • Interplay believes that Bethesda purposefully made the language vague as to what "secured funding" means, as Bethesda's COO Mr. Leder couldn't even tell the court what it meant.
  • Bethesda claims people called up their customer service complaining about the Fallout Trilogy pack from Interplay
  • Interplay doesn't believe that
  • Bethesda says Interplay was represented by lawyers when negotiating the contracts
  • Interplay says that isn't true, it was just Herve Caen
  • Interplay claims that Bethesda purposefully made the language vague as to what "commenced full-scale development" means
  • Project V13 won't be out for at least 2-3 years
  • If Interplay loses the court battle, they will just change PV13 to not reference any Fallout things. They would basically just make a new IP.

There's probably a bit more in there I didn't cover, so on to the transcript for yourself!

MR. GERSH: Trilogy, as far as I'm concerned, I think the evidence would be clear, doesn't refer to a third version of a game like Fallout Three. You'll see from the documents we've submitted, the packaging is completely different. The packaging completely identifies the product within it, but most importantly, there is no confusion in the marketplace. Zero.

Yesterday during the deposition there was testimony by Mr. Leder, the COO of the company, that they had possibly two complaints to their customer service office, talking about they needed a patch or a fix for a game. They have not one complaint in the millions of copies they should of Fallout Three, that one consumer was confused by Fallout Three and Fallout Trilogy thinking they were the same. Not one. They have no survey. They have no evidence of any confusion. I don't even belief when Your Honor looks at the two packaging that you could even say there is a likelihood of confusion. It doesn't exist. They're clearly identified.

This is not the same as somebody actually taking Fallout Three and using it. It's clearly marked. The font is the same. The lightening bolt and the O is the same, exactly what we've been using in the past, exactly what is continued to be used today by the Plaintiff. So I submit there is not any confusion. There is not likelihood of confusion when it relates to that.

The other issue that you have to deal with is whether or not they're likely to prevail. We have the balancing test that we deal with, et cetera, and I submit that once all the evidence has been brought out to Your Honor, you've looked at what's going on, you'll see, one, no confusion, two, no likelihood of success, three, the balance of the hardships would tip strongly in the favor of Interplay. They've been using this in the past, and if the only thing that is the problem is the use of the word "Trilogy," then we should know that that's the problem and that can be addressed by the Court and us, but there should not be an injunction issued to stop Interplay from doing that which it had previously done.

Also, there will be testimony from Mr. Caen that when he licensed, when he sold the product and licensed it back there was an expected revenue stream for the company for years to come, and as a matter of fact, not only that, Mr. Marbury indicated that we're trading on the good will of the Fallout brand. Well, that's exactly what we're going to do. That's exactly what was intended by the agreement.

They licensed Interplay back the right to be able to sell the pre-existing games in perpetuity, no termination provision in the document whatsoever, and there is a termination in the TLA, but there isn't a termination right or provision in the APA or the asset purchase agreement.

And there's no question that the consequence of Interplay continuing to sell product, every time a Fallout game is released by Bethesda the consequence will be that the earlier game increase in sales and there is demand for them. Their own witness indicated that is a consequence and that's going to happen. So when Mr. Marbury talks about trading on the good will, yeah. That correct. We're going to.

We bargained for that, and they knew it and they know it. That's exactly what we're doing. It's going to help the sales of Interplay's earlier game and Interplay is going to continue and should be allowed to continue to market its games world wide as it has in the past.

With respect to the MMO, we have some very threshold issues to get through before I believe an injunction could even be considered to be granted in this case.

First of all, this game is not going to be released7 for at least two years, possibly three years, not even going to be completed. Why we're here trying to enjoin something that's
9 under development is beyond me.

Secondly, Interplay has the absolute and unfettered right under that agreement to continue to develop this game, and if it is ultimately not approved because of the quality or other reasons under the terms of the agreement or, for that matter, if ultimately at the time of trial Your Honor decides that there was some violation that should have stopped Interplay, they have the right to change characters and scenes and do what is necessary to release that MMO.

So, how do we fashion even an injunction when we're thinking about it, you can't say "Interplay, you cannot make a MMO. You can't make an MMO with Fallout characters." Then we're going to have an argument, does this character look like a Fallout character? Is it similar? Is it close? The language of the agreement defines what can be done, and it's a little bit vague and a little bit left for everybody to kind of decide as we go.

But I don't think we can decide that until the game is done. Did we meet the standard or not. There is a provision in there that says if this agreement, I'm sorry, if the game is not approved we can take out the Fallout characters to the extent any are in there. We can take out the scenes, and we can continue to make the MMO. They can't stop us from making an MMO, which is exactly what they're trying to do, so we have that problem.

We have a bigger problem. The two conditions that Mr. Marbury has indicated, they're incapable of being enforced, absolutely incapable. They're vague. They're ambiguous. They're illusory at best.

Let's start with the first one. We had to secure $30 million in financing. What does that mean? I don't know. Why isn't it defined in the agreement? The witness, Mr. Leder, the COO, didn't know. Why wasn't it made clear what it had to be? Didn't know. Did it have to be, did the money have to be in the bank? Absolutely not, he said. Did they have to have a line of credit? Maybe. What does it mean? How do we interpreter that?

By the way, Mr. Leder testified yesterday that Interplay was fully permitted to use a third party to help develop the game for them. Masthead. If Masthead is going to spend $20, $25 million in its development, why isn't that adequate? I'm not sure. I think it is, but I don't know. I don't know what secured, secure financing means.

Everybody know it, Mr. Leder said. Everybody will know what it means. Well, but it didn't mean in the bank. It didn't mean they had to have a specific line of credit. It also doesn't mean, and there is nothing in the agreement that says they have to be able to use $30 million on day one.

This is a project that's going to take four to five years to develop. So secured financing over some period of time that they're going to be able to have that amount of money. That might be reasonable. Is that what Interplay is doing? I believe so.

Now we get to the next step. And remember, they have to have both, as Mr. Marbury said. You got to be, commerce full scale development. Your Honor, what does full scale development mean? I don't know. Doesn't say it in the agreement. No definition.

Mr. Leder said "Boy, it's a very complex situation. Hard to describe," and he listed a whole bunch of things yesterday for full scale development. I said why is it in the agreement? I don't know. How does Interplay, how is Interplay supposed to know when full scale development starts? I don't know.

This is an agreement drafted primarily by DLA, who represented the Plaintiff in this case. They had five in-house business people review this agreement. They had their in-house, at least one in-house lawyer and at last one lawyer at DLA review it.

That's seven people looking at this document. And we're left here today before you with this preliminary injunction with the two most important provisions of that TLA undefined and unknown and we have to guess.

Interplay has no way of determining when it's in compliance. You have no way of determining when it's in compliance for purposes of this preliminary injunction. Maybe at trial it's different. Maybe if there is expert testimony that comes along at the time of trial on what standard in the industry means, we get there. Maybe. But I don't think so because I don't think anybody can define full scale development in the context of what they're doing or what they understood. It could only possible be what theses two parties meet in their minds.

And Mr. Leder couldn't even tell us, the COO, yesterday, what it meant and when it started. It's a complex situation. If you can't decide when that starts, the provision's illusory. You can't enforce this agreement.

If you can't determine what it means and, you know, clearly, unequivocally what it means to have secured $30 million in financing and we've got to go speculate for something, that may be a trial issue. We're here on a preliminary injunction. It's got to be clear. It's going to go unambiguous. And I submit, Your Honor, you don't even need testimony if Your Honor looks at those two provisions and says "Wait a second. Is there any definition of these? Is there any way I can determine as the Court what these mean and when this was suppose to happen for Interplay?" And when your answer comes up "Nope. There's nothing in the agreement," we should all go home. Thank you, Your Honor.

THE COURT: Mr. Marbury.

MR. MARBURY: Very briefly, Your Honor. I'd like to continue along the part here of discussing the MMO separately from the TLA.

I'm at a little bit of a loss of words on this issue, because to have a company that's been active, a publicly traded company that's been active in the marketplace, raising money, putting out games, operating for year, decades, to say they don't know what secured financing means is just hard to understand.

It's not unclear. What they're trying now to do it's clear, is try to negotiate that two year obligation into a five year obligation, or a six year obligation. What Mr. Gersh failed to point out was that Interplay was also represented by counsel.

They negotiated the agreement too. They understood what it meant when they went into it. There is no question what secured financing means. Everybody knows what that means.

The same can be said about full scale development. The parties understood that, and Mr. Gersh's characterization of the testimony I don't think is completely accurate from yesterday, but you'll hear it later and you can determine that.

But the parties understood exactly what they were getting into when they got into this agreement back in 2007. The suggestion that we don't have to deal with this until launch is just wrong. The contract says we're suppose to be dealing with it in two years. More to the point, the contract, in §3.4 very clearly explains what, in the event of a termination, Interplay can do, and it says very clearly in §3.4 that they are not allowed to use our characters, our environment, our story lines, our setting, our characters, our character classes.

The parties have already negotiated this. You can't just take out some of the characters. It's the world. Their project right now, it's been titled Project V13, and that's a reference, we understand, to Vault 13, expressly something that's excluded from their rights going forward to use Vault.

So you understand the context, the idea here is that in the post-apocalyptic world people went underground into the vaults. The Fallout story starts in Vault 13. Those are things that they bargained away. So the idea that five years down the road, or years down the road when these guys have finished the game, they can simply flick a switch and suddenly have a non-violative game, it just doesn't make any sense.

In terms of customer confusion, we'll have testimony from Mr. Leder that not only were there some calls in to customer service, but there were also, he had discussions with marketing people, I'll show you a picture from WalMart where the two things are on the shelf. A number of people complained that way.

More to the point, customer, actual customer confusion is one of, I believe, eight criteria that we need to show. It's not even actual, it's likelihood of confusion. Of the eight criteria, Your Honor, we nailed seven out of the eight. It's not a requirement for a finding of trademark infringement.

The other criteria, Defendant's intention. Well, we understand their intention. They're intentionally doing this, so we have proven that.

Is it the same mark? It's the identical. It's not E Fallout, or some variation in a foreign language. It's the exact same mark. It's the exact same goods. It's the exact same sales channels. It's the exact same advertising, sometimes on the same shelves.

So, to the extent that we haven't done a survey in the last month and brought in an expert witness who would not have been allowed because we were limited to the affidavits that we had submitted along with our motion. It doesn't matter for the purposes of reaching a conclusion here.

And, finally, you know, to point out on the asset purchase agreement side and to claim that the merchandising rights were perpetual is illogical. They argue that there is no termination provision in the asset purchase agreement.

Well, Judge, it's an asset purchase agreement. It's a transfer. There's a closing. Having a termination provision, express termination provision, makes sense in the trademark license agreement. It doesn't make as much sense in an asset purchase agreement. But if you put that aside, the logic fails. The logic has to be, the word "perpetual" shows up no nowhere in that agreement, Judge. There is no perpetual language in there. This is just an interpretation. But the logic, if you continue it to its extreme, is that they can breach that contract ten ways to Sunday, but they get to continue to sell, and that just can't be right. That can't be the law.

So, we think that our case is a clear one. We agree that, you know, we need to look at the contract documents and focus on what has been done and what has not been done by the parties. I think we can clearly establish what has not been done. They have not submitted these boxes for approval. They have not gotten the $30 million and they haven't started full scale development. Thank you.

THE COURT: Um hum.

MR. GERSH: One point if I may, Your Honor.

THE COURT: Um hum.

MR. GERSH: I just want something to be very clear. Mr. Marbury said that Interplay was represented by counsel in the negotiates. Not true. Didn't come out in his deposition. Mr. Caen represented the company, handled the transaction himself. Did not have counsel go over the document for him. This is seven people on one side, one person on another. This is how the document came out.

On the issue of the termination, which is the last thing I wanted to say under the agreement, all they had to do was make their language clear as to what was going to happen, and they didn't. Instead they created confusion. They created it in the TLA and they created it in the APA, and I don't think there is enough for the preliminary injunction to issue. Thank you.

THE COURT: All right. We're ready to hear witnesses.

MR. MARBURY: That would be great.

So I guess stayed tuned for part three when we hear the witnesses (maybe?).

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Partial Transcripts for Bethesda v. Interplay [ Company -> Update ]
Posted by King of Creation | Related News Items Tue 12 Jan 2010, 5:53 AM
News related to Top Story: Bethesda v. Interplay: Transcripts | More info on Company: Bethesda v. Interplay | More info on Game: Project V13

DAC has obtained some partial transcripts for the Bethesda v. Interplay preliminary injunction hearing. Below you can find some of the opening statements made from the case. It's rather long, but I'm going to post it up anyways. For those who can't remember, Marbury is Bethesda's lawyer. Gersh is Interplay's.

Things we learn from the transcript below:

  • Talking about Project V13 hurts Bethesda (kind of like how saying "I don't believe in fairies" hurts a fairy)
  • Bethesda is NOT working on a Fallout MMO, they are "working on something else"
  • Bethesda's lawyer didn't really understand the concept of a "preliminary injunction" and the judge called him out on it
  • Interplay's lawyer believes that there was never a breach of contract in the first place

And here's the transcript

MR. MARBURY: So, the other condition is full scale development and it is also clear that they have not engaged in full scale Development of this MMO. The witness we believe will testify consistently with his deposition, that they have approximately 20 people working, or at least he thought there were 20 people working in Bulgaria on this project when he visited back in March of 2009. We will put on testimony that that is far, far less than what you need to make one of these in full scale development. Based on our own experience in the MMO field, you need more than a hundred people working on this to be in full scale development. And, in fact, to confirm that testimony we will share with the Court Interplay's own budget documents that show that their initial budget on this required them to use well north of 50 people, and that was a scaled down version.


So, I think 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.


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 COURT: But 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?


MR. MARBURY: Well, Your Honor, they claim that they're doing it. They've testified --


THE COURT: They haven't put it up on the web though. 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?


MR. MARBURY: Well, Your Honor, they are developing it and they intend to develop and they intend to exploit it, and they would like to advertise it, and there's nothing in place right now to prevent them. There is no order from the Court to prevent them from advertising that they're doing aFallout brand.


And so you understand the marketplace, a lot of this industry is driven by the blogs. There are an enormous number of blogs out there where people post either wild speculation or a company's plan or their discussions about Fallout and other games. In fact, there are specific websites specifically for Fallout. So there is an enormous amount of discussion out there about how the company is develop a Fallout, how Interplay is developing a Fallout MMO. So, it is -- they're out there. The marketplace is aware of it. They're developing it and they tend to explicit. That's damaging to my client.


More to the point, Your Honor, when the parties entered into the trademark license agreed specifically, they negotiated and agreed that at the two year marker there would be some sort of determination made about whether they had the rights to go forward and continue to do this development or not. That two year time limit has expired.


The parties also agreed that because of the unique and special character of the IP that we own, that we be, shall be entitled to injunctive and equitable relief. So the parties already negotiated for some sort resolution in year two, and we are obviously seven months past year two. But to the extent that they continue to do this, that impacts our brand and it impacts, you know, the marketplace.


They've already expressed that they are continuing today to work on this project. And so what we're going to end up doing is fighting about this two years down the road, or three years down the road, if they actually do launch. So that's the immediacy of the issue for us, that we've negotiated for a to year cap and they failed to comply and it's time for us to be able to clear the air in the marketplace so they know, so the market place is clear that Interplay doesn't have the rights to the Fallout MMO.


Also, Your Honor, try to make another point, one of the keys to success in the software industry is clarity, clarity of rights, rights and title. These games, as I have described, take many years to develop. And to the extent that we are, we're not in the process of developing our own Fallout MMO right now. We're doing something else. 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.


We're not developing it now because we don't have a ruling from a court that we have the rights to do it. But we need that clarity for our own business purposes as well. So what we're seeking is what we bargained for, which is at April, 2009, you have either, the company is either, you know, going at this in a appropriate matter, fully funded and going full scale with it with a lunch or not, because, Your Honor, again, if they launch, there's a royalty stream there for us, right. If they don't launch, we've got an asset that's not depreciating but it's not being used. So either they use it and we get a royalty stream, or we get it back and we find another way to use it. But to the extent that this drags on that royalty stream's not being exploited either by us directly or by Interplay --


THE COURT: How does a Preliminary Injunction help, because it's only preliminary? It could be different at the end. I mean, it doesn't help clarify the situation. A Preliminary Injunction is designed to sort of freeze the status quo so that we can have a breathing space to get something decided. That's not going to clarifying anything. And if they're not actually going to launch, they're doing it at their own risk to develop it, if they continue to do that, because ultimately a court may decide that they didn't have the right to do it because of their default by last April.


MR. MARBURY: Well, Your Honor --


THE COURT: A Preliminary Injunction does not get you any clarity.


MR. MARBURY: Well, Your Honor, I will tell you that in their SEC filings Interplay has disclosed that they're out there trying to raise money today, or at least in their last quarterly report, they're trying to raise money based on exploiting the brand and the IP that they have. So Interplay is out there using the Fallout mark, trying to raise money, and that impacts my client directly.


They don't have the rights to do that, Judge. They're under funded. They're using a company out there that has no experience in lunch MMOs, that everybody knows hasn't ever done anything successfully. They've never launched a game in their career at Masthead. So that's impacting the Fallout brand, which we have invested an awful lot of money in, Your Honor.


It's a very value brand for us, and to the extent that there's dilution of that, that's not something that is easily quantified. As you know, trademark, you know, in good will, very challenging to quantify. So the longer that it goes, on the more dilution, or the more weakness, the more discussions online, the harder it is for our client. So that's why we think we're entitled to injunctive relief. We bargained for it. They agreed that we shall be entitled to equitable relief in the agreements. They haven't met the conditions. I think it's pretty clear, Judge.


So, you know, our burden here is to make a clear showing, Judge, of a number of things. One, that we're likely to succeed on the merits, two that we're likely to suffer irreparable harm, and I think that's satisfied both by the facts of the case and the presumption at law for trademark infringement being irreparable harm. The balance of the equity --


THE COURT: Here's where their Motion on the Subject Matter Jurisdiction helps you, I hope, to focus also. You're talking about a presumption of harm on a trademark. On the trademark license agreement issue, that's a closer call on whether it's just a breach of contract or something else. So, you talk to me about presumption. I am not, I don't, I'm remaining silent because I don't want you to think that I accept the proposition that even if you show likelihood of success on the TLA issue in terms of breach of that agreement, that it necessarily implicates irreparable harm.


MR. MARBURY: Understood, Your Honor. Understood. We think the balance of the equities tip in our favor clearly, and that the public has a strong interest in not just protecting valid trademarks and other IP rights, and not just enforcing the agreements that we entered into at arms length, but also to prevent customer confusion in the marketplace. So that's what we intend to show here today, Your Honor, and we appreciate your time and attention.


THE COURT: Okay. Mr. Gersh, you can make a brief opening, I guess, and help set the scene for what I'm about to listen to.


MR. GERSH: Thank you, very much, Your Honor. Your Honor, I would like to address one point that you raised at the end which I think is very crucial to this entire issue, and that is briefly you raised the subject matter jurisdiction.


THE COURT: Um hum.


MR. GERSH
: And the irreparable harm coming out of the contract and the presumption. I still believe, as we said in our papers, that overriding, 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.


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. The Maryland case we cited I think is right on point. The Illinois case is even clearer. That's all I'd like to say.


THE COURT: I did read them over. The problem I have with your assertion is the counts four and five of the complaint. As I understand the law now, if on the face of a complaint it clearly invokes the federal statute and rights available under federal statute, that that's enough. Because if what you're asking me to do is in essence to go determine the merits of an underlying dispute, then the subject matter jurisdiction merges too much into the merits, and we're not going to decide it on a threshold basis.


I have to look at the well pleaded complaint, and I have here counts four and five, never mind what one and two and three even would be, or even later. Well, the common law one is Delaware law, not even federal. But that's why I'm fairly satisfied at this point, from my look at it last night, that they have done what they needed to do to invoke the subject matter jurisdiction at this juncture. But, again, I will look at it more carefully. You have certainly educated me to look at that in a lot of ways, but you had to find, you had to go long and hard to find another case after Gibraltar that you think is even close, because I think when you fairly look at the face of a complaint, this one does have those two counts. Okay.


MR. GERSH: Just for clarification, and I do agree with Your Honor. In fact, I wish we had brought this to Your Honor's attention earlier. We just found it. I've been doing this for 30 years and don't consider this little nuance between the breach of contract, and we did come across the cases just yesterday, which is why we pointed out, and it is quite a nuance.


And I think that when you look at Gibraltar, the only thing that Gibraltar talks about is that it does say they didn't plead trademark infringement.


THE COURT: It was an arbitration compelling.


MR. GERSH: Correct. They tried to bootstrap it basically, and under the Federal Arbitration Act. But in the Illinois case, they made it very, very clear that no matter what you call it, if it is a breach of contract, and that is your threshold issue, and these are contract claims, it is a breach of contract and that state courts are just as well available to deal with the contract part of the claim, and you cannot turn a breach of contract into a trademark infringement and invoke subject matter jurisdiction in a federal court.


THE COURT: Exactly. If all we were dealing here with was the trademark license agreement dispute, that is whether you have the right to continue to try to develop the MMO, this would be a much tougher question. But as he said today, when we have the Trilogy Three and the -- I'm sorry, the Fallout Three or the Fallout Trilogy, where even if you have the right to go ahead and do something, if what you're doing is naming it in a way that causing confusion, I'm talking, that's trademark, not breach of contract.


Whether you submitted it or didn't submit it is really not tissue and that, I think, is where they get into federal subject matter jurisdiction without question, because that's not just breach of contract, that's something else.


MR. GERSH: And that's kind of where we diverge, and because you never get to the issue of trademark infringement unless you find there's been a breach of contract you don't get there at all, because if we didn't breach the contract, as they allege, then we did not, we cannot possibly have infringed because we had, our clients had the rights. So you never get there, and that is the distinction that I think is very crucial to the consideration.


It's not that -- It's not that we have a competing trademark case where you have somebody that comes along and said "I like your mark. I'm going to use it," and they copy it and steal it. That isn't our case.
This situation is different. Interplay had the rights to use this, and the only basis that they bring a trademark infringement case before Your Honor today is because they're contending we have breached the agreement and therefore we're infringing the trademark, and that's the problem.


You have to determine the breach before you get to infringement. If you find, if the Court finds there is in breach, you never get there. We didn't steal the mark. We didn't come along and use it differently. We used Fallout because we had the right to use Fallout.


THE COURT: You had the right to you Fallout. The question is do you have the right to use Fallout Trilogy.


MR. GERSH: And, if I might, that would be an issue of whether or not we breached the contract by not submitting it.


THE COURT: Whether that's a pre-existing product.


MR. GERSH: That's correct.

THE COURT: Which I understand, but all of the judges and all of the writers indicate what we've got here is something that is not easy to compartmentalize.

MR. GERSH: I appreciate that. Thank you.

THE COURT: I read it. I looked at it. We're going forward. At some point, if I have more of a concern I will, obviously you will be among the first to know.

MR. GERSH: Thank you, Your Honor. Your Honor, I think what I'll address is a couple of things that Mr. Marbury raised.


Interplay had the rights to use the mark, as I have indicated. Interplay used the marks that it has been using in the past, in the same manner in which they had been using them. They had use Fallout Trilogy previously. Mr. Marbury has indicated that Mr. Caen testified at his deposition Fallout Trilogy had been used in France. They were given a complete list of all of the companies that were using our mark at the time of the closing.


Interplay has done nothing but to continue to usethat which it had used previously, and they did not have to submit those for approval. And, in fact, over a two year period did not submit any of the marks for approval.
The only issue, as Mr. Marbury seems to indicate now, is Fallout Trilogy. Not that we didn't have the right to use Fallout, Fallout Two or Fallout Tactics, but it's Trilogy. So here's what we have. We have Trilogy. Talks about a compilation of three games. It's clearly identified on the box, and it shows the product that's on there.


You asked the question, doesn't their determination have to be reasonable, and I submit that it does. And it still has to be reasonable whether we've submitted it before or not, because Interplay had been using it before and in fact believed and reasonably believed that they had the right to continue to use the box art that has been used in the past. They have done nothing different.


In most trademark infringement cases, Your Honor, somebody comes along and they're trying to take the good will of another company. In this particular case Interplay had the right to use that which it had actually developed originally, sold and licensed back certain rights. It didn't come along to steal anything.
Trilogy, as far as I'm concerned, I think the evidence would be clear, doesn't refer to a third version of a game like Fallout Three. You'll see from the documents we've submitted, the packaging is completely different. The packaging completely identifies the product within it, but most importantly, there is no confusion in the marketplace. Zero.

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