3D Realms Puts Up Dukes In Legal Battle With Gearbox

By Nathan Grayson on March 27th, 2014 at 11:00 am.

He'll be your judge, jury, and focus of a series of increasingly heated legal exchanges that culminate in uncertainty surrounding a beloved franchise for years to come.

The plot thickens. Actually, come to think of it, the plot was already quite thick – perhaps even viscous – given that 3D Realms sold the rights to Duke Nukem years ago only to resurface out-of-the-blue with a new Duke Nukem game being developed by Rise of the Triad developer Interceptor, get sued by Gearbox for it, sell its entire business to Interceptor, and allege that the purveyor of borders and lands has no legal ground to stand on. It’s been a mess so far, frankly – a sticky morass of contradictory claims. And now for the latest chapter, in which 3DR and Interceptor claim an agreement over an old project called Duke Nukem Survivor gives them every right to continue absconding with Gearbox’s supplies of gum and frighteningly kickable ass in the night.

3D Realms and Interceptor sent RPS court documents that, among many other things, contain the following section:

“63. [Gearbox's] claims are barred, in whole or in part, by written or implied trademark and/or copyright licenses. The Asset Purchase Agreement provides that 3DR could complete development of and sell a video game with the tentative title of ‘Duke Nukem Survivor.’ The Asset Purchase Agreement also explicitly provides 3DR a ‘worldwide, non-exclusive license (including the right to sublicense) to use’ the DUKE NUKEM trademarks in ‘connection with the marketing, promotion, manufacturing, and distribution of’ the ‘Duke Nukem Survivor’ game. In 2012 and again in 2013, Plaintiff was informed by 3DR of the development of the Duke Nukem game by 3DR. Plaintiff failed to timely object to the development or sale of the Duke Nukem game.”

Duke Nukem Survivor, apparently, was Duke Nukem: Mass Destruction’s tentative title.

The dynamic developmental duo are also alleging that Gearbox doesn’t hold Duke Nukem’s trademark rights at all, and thus they remain “the sole property of 3DR.” The company claims, then, that Gearbox never intended to enter into the vaunted “good faith” agreement it’s spoken so much about, but rather “sought to force former owners, Scott Miller and George Broussard, to improperly surrender what rightfully belonged to 3DR.”

Questions abound. How exactly did Gearbox fail to secure Duke Nukem trademark rights, for instance? Seems like a rather large oversight for a developer that trumpeted from the mountaintops its purchase of all Duke-Nukem-related releases from here until the end of time. And what exactly was Duke Nukem Survivor in its original conception? Was it far enough removed from Mass Destruction that there might be something to Gearbox’s claims after all?

I’ve sought comment from Gearbox and put in another interview request with 3DR/Interceptor. In the meantime, though, goodness. Even when Duke isn’t spouting crude one-liners and putting holes in everything that moves, he sure can carve a path of destruction.

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27 Comments »

  1. Ianuarius says:

    “Duke Nukem Survivor”?

    The result of a 96 hour brainstorm session.

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      Skeletor68 says:

      How about Duke Nukem: Origins where the Duke sits in a courtroom on sexual harassment charges and has flashbacks to his youth explaining how he came to be. I’d probably play that.

      • Tams80 says:

        Objection! To your objectification.

        Please don’t sue me.

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        Lexx87 says:

        That sounds incredible. Duke crossed with Phoenix Wright; sign me up!

      • roryok says:

        That reminds me of ZeroPunctuations brilliant Duke Nukem ‘preview’. That is the game I wanted to play.

        http://www.escapistmagazine.com/videos/view/zero-punctuation/748-Duke-Nukem-Forever

        “Ten years after the alien conquest of earth a middle-aged and jaded duke is in hiding in Stockholm under the name Vladimir L’Estrade until a letter from his estranged daughter in the resistance begs him to come to their aid”

        • SominiTheCommenter says:

          Don’t forget “I was extremely moved by the scene where Duke tearfully reunites with his daughter, then she puts on a bikini and dry humps his leg”

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      FriendlyFire says:

      Can we just go for Duke Nukem: Fornever? I’d rather forget about this whole series now.

  2. Philomelle says:

    3D Realms should hire Tim Langdell to represent them in court. I feel they would have a very meaningful and healthy relationship.

  3. Noviere says:

    “NO! That’s my faeces!”

  4. ArtyFishal says:

    Damn, those Gearbox bastards are gonna pay for fucking up my game.

  5. whorrak says:

    Other than the owner(s) of the IP, is there anyone else who gives a shit about Duke Nukem?

    • Ubik2000 says:

      I don’t think so. At this point, just reading the words “Duke Nukem” makes me feel vaguely embarrassed for everyone involved. What a deeply stupid name.

    • Frank says:

      Yeah, this. Though I’m holding out hope that this becomes a legal black hole, absorbing all the other trademark-mongering in the industry.

    • NailBombed says:

      Yeah, I actually enjoyed the first two platform games Apogee put out – and DN3D was grand fun if thematically puerile. Could give less than zero about Forever, but everyone knows how badly that turned out. If Interceptor desnarled this legal tangle I would be happy to see them try their hand at a new Duke IP idea.

  6. Graves says:

    Does anyone have links to the documents or have any idea where this was filed? Since it came from 3D Reams/Interceptor, I imagine this is an answer, and I’d like to read the initial complaint filed by Gearbox as well.

    It sounds like someone was playing fast and loose with licenses, and I’m curious to see what was alleged to have happened.

    • Graves says:

      Here is the answer, for anyone who wants it: http://www.scribd.com/doc/214523092/Ltc-Re-Answer-coip-03-19-14

      EDIT: The attached exhibit is rather interesting. I’m not sure I approve of the methods of Gearbox’s lawyers, but the statement gives a little more insight into how this dispute started. I’m looking for the initial Complaint now.

      • El_Emmental says:

        Interesting document – it kinda explains why 3DR looked like they were admitting they did something wrong, when there were most likely buying time in front of aggressive lawyers threatening them at legal gunpoint.

  7. Dances to Podcasts says:

    I wonder if it ever occurred to these people that they could just make a new game about a… Dirk… Newcombe…

  8. Baines says:

    How exactly did Gearbox fail to secure Duke Nukem trademark rights, for instance?

    By way of commentors at Destructoid, Gearbox didn’t fail, at least in the eyes of the US government.

    Trademarkia says Gearbox is the last applicant/owner of the “DUKE NUKEM” trademark:
    http://www.trademarkia.com/duke-nukem-74422331.html

    The United States Patent and Trademark Office web page ( http://www.uspto.gov ) returns five trademark search results for “Duke Nukem”. Duke Nukem Forever is registered by Gearbox. Duke Nukem “computer game software for entertainment purposes”, while initially registered by Apogee, has its last listed owner as Gearbox. (The other three listings are for various merchandising such as toys, comic books, breakfast cereal, bed linens and the like. Two are Apogee’s, both of which are marked as abandoned. The third is for TBS Productions, which is marked cancelled.)

    • El_Emmental says:

      But there’s still the possibility that Gearbox wrongly registered their trademark at the USPTO as fully covering all “Duke Nukem”, forgetting about the “Duke Nukem: Survivor” title, 3DR/Apogee only realizing that a few months later. I don’t know how it works in the US, but there must be a procedure when that kind of mistakes happen.

      In the case of the 3DR/Apogee case, their claim on “Duke Nukem: Survivor” smells a bit like a load of bullshit (invalid or invalidated contract) that they won’t be able to defend in court. We’ll see…

    • wzo says:

      Going by what’s in the article they only refer to the use of the Duke Nukem trademark in relation to the Duke Nukem Survivor game. It doesn’t dispute that fact that Gearbox own the trademark.

  9. Beelzebud says:

    If I was the judge in this case it would be capital punishment for every involved party.

  10. HisDivineOrder says:

    This is classic, “Settle with us or risk your game you’re about to announce being delayed indefinitely.” This is 3dRealms trying to have their cake and eat it, too. They think the cost of settling this will be infinitely less than the cost of fighting it, so they can compel Gearbox to do something they don’t want to do.

    It’s really rather ridiculous. I wish a judge would just look at this, issue a ruling within a day, and heavily fine the idiots that thought they could sell the same IP to two companies.