The game had never been opened, even less played, and was still sealed in its original shrinkage. Nevertheless, Bethesda sent through his law firm Vorys a threatening letter to Hupp, requiring him to take down the goods from Amazon or face legal action.
"Unless you remove all Bethesda products from your store, you must stop selling all Bethesda products immediately and identify all sources of Bethesda products you sell. We intend to file a lawsuit against you." the letter.
Bethesda's legal firm also made it clear that it would seek "disgorgement of profits, compensatory damages, attorney fees and investigative and other costs." For an individual seller who is just trying to pick up some of the money he spent on a game, he can not play, it's quite intimidating, and so he followed.
"The The first sales doctrine, codified by 1
Betesda's way of trying to get around seems to be the lack of a transferable warranty. In the letter sent to Hupp, Vorys claims that Hops sales fall outside the limits of the first salesdoctor because there is no transferable warranty, it is "substantially different from genuine products" sold through official channels.
We are not a law firm, but it is difficult to imagine the argument that arises in court, at least in this specific case and the like that involves some sellers (if indeed everything went down as Hupp claims). It does not matter until someone has it to defend against it. Otherwise, the same argument could be used for almost all used game sales and complete the exercise completely. Having said that, we do not know Bethesda's side of history so there may be more to this.