Activision hits back at Spark with countersuit

Activision has responded to Spark's USD 10 million lawsuit by filing a countersuit that rejects all of the Call of Duty: Finest Hour developer's claims and presents some strong allegations in return.

According to the countersuit - a copy of which was obtained by US website Gamespot - Activision is alleging fraud, breach of contract, information misappropriation, trademark infringement, false designation of origin and false advertising.

The publisher claims that Spark gave misleading information when pitching for the development contract for Finest Hour sequel Call of Duty: Big Red One, a contract which eventually went to Grey Matter and Treyarch.

Activision alleges that Spark deliberately gave a "false impression" by claiming that the development team would be made up of developers who had worked on the hit Medal of Honor series.

"Activision only later discovered that [Spark CEO Craig] Allen had falsely and greatly exaggerated the role played by the Spark team in the creation, development, and production of Medal of Honor," the lawsuit states.

"He had misrepresented the capabilities of Spark, whose monumental incompetence at its executive levels and inability to avoid doom without Activision's intervention, Allen would himself later concede."

Activision claims the evidence for this is to be found in what has been filed as Exhibit A - a project review, proposal and email from Allen himself in which the CEO is said to concede that Spark was responsible for many of problems arising during the development of the original Finest Hour game.

The countersuit goes on to blame Spark for the release date delays which meant the game launched in November 2004, and not in June of the same year as originally planned: "Spark repeatedly failed to deliver on its obligations under each of the 'production milestones' that Spark generated for the project," the countersuit states.

"Ultimately, even with Activision's huge infusion of additional human and monetary resources into Spark, the release of Finest Hour was delayed."

The lawsuit has been issued in response to a claim filed by Spark in August in which the studio claimed it was originally contracted to create three games, beginning with Finest Hour.

Spark alleges that Activision gradually forced the studio to accept lower royalties and more difficult terms by threatening not to sign further contracts. The lawsuit goes on to claim that Activision eventually attempted to destroy Spark entirely so that there would be no possibility of launching legal action against the publisher.

Spark's lawsuit makes no reference to the Xbox and GameCube versions of Finest Hour - which Activision now claims the developer was originally contracted to produce.

"Activision had to contract with outside contractors and front the development costs of those platforms as well as bear all of the additional risks and costs inherent in supervising additional developers," the countersuit alleges. It also claims that despite Spark still collected royalties from sales of the Xbox game.

Activision denies that Spark's Big Red One proposal was "summarily rejected", as the developer claims, offering six pages of reasons why the contract went to other studios.

Spark is now working on a series of games for Atari - and, according to allegations made by Activision, is unlawfully using development kits supplied by its former publishing partner to do so.

"Spark's refusal to return Activision's source code and other material is particularly disturbing because Spark contends it is currently developing products for Atari, and Spark's use of Activision's property to that end would not only be unlawful, but also it potentially could turn Atari into an unwitting violator of Activision's rights," the countersuit states.

Activision rejects Spark's claim for USD 10 million in damages and compensation, and is demanding "actual and compensatory damages from Spark and Allen in an amount to be proven at trial."

The publisher is also attempting to claim "Treble damages" for alleged trademark infringement, false advertising and unfair competition, and "punitive and exemplary damages" for what Activision claims were "fraudulent representations of fact." The countersuit also claims for legal fees.