Gearbox Software has filed a federal lawsuit against 3D Realms and Danish developer Interceptor seeking damages and a formal injunction for trademark infringement, unfair competition, copyright infringement, and breach of contract. In the filing Gearbox alleges 3D Realms and Interceptor are seeking to “misappropriate and make infringing use of the Duke Nukem trademarks and copyrights owned by Gearbox.”
Earlier this month it became apparent 3D Realms was planning a new Duke Nukem game with Danish developer Interceptor Entertainment, developer of 2013’s Rise of the Triad remake. A teaser site, alloutofgum.com, was counting down the days until February 25 and was briefly linked to a Facebook page for Duke Nukem: Mass Destruction. The game is described as "an isometric, action role-playing game for PC and PlayStation 4.”
The suit asserts Gearbox secured its rights to the Duke Nukem property on February 2, 2010, “upon the execution of an Asset Purchase Agreement in which 3DR transferred, with certain very limited exceptions, all Duke Nukem intellectual property to Gearbox.” The agreement required 3D Realms or its licensees to seek Gearbox’s permission before making use of Duke Nukem after that date.
Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, 3DR sought to privately convince others that the sale never happened.
“Recently—and without consulting the Duke IP’s actual owner, Gearbox—Interceptor announced its intent to develop a Duke Nukem game based upon the various characters, content and intellectual property owned by Gearbox; the proposed game is entitled “Duke Nukem: Mass Destruction,” the filing continues. “Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, 3DR sought to privately convince others that the sale never happened. The result is the unauthorized development effort that reportedly exists between 3DR and Interceptor.
“By attempting to license the unlicensable, assign the unassignable, and effectively re-sell the exclusive rights that Gearbox already purchased in 2010, 3DR breached the terms of its [Asset Purchase Agreement] with Gearbox, as well as Gearbox’s exclusive, federally-protected intellectual property rights. Unfortunately, the 3DR-Interceptor maneuver has left Gearbox with little choice but to bring these claims.”
The suit also reveals a 3D Realms response to a cease and desist letter sent by Gearbox regarding Mass Destruction that concedes “all future development in the Duke IP” is a development right exclusively held by Gearbox” and admits “development efforts such as 3DR’s Duke Nukem: Mass Destruction effort with others was not only unauthorized, but a material infringement of the Gearbox’s rights.”
“As the filing shows, 3DR’s wrongdoing is both admitted and unfortunate for everyone who cares about Duke Nukem,” read a supplied statement from Gearbox Software.
Claiming “[n]o good deed goes unpunished” the filing goes on to describe 3D Realms’ difficulties with Duke Nukem Forever (“Specifically, 3DR asked Gearbox to rescue 3DR from the Take 2 litigation and, if possible, to complete the technological jigsaw puzzle of a videogame that 3DR had been calling DNF. Because Gearbox had personal ties to 3DR, Take 2, and its fellow Duke Nukem fans, Gearbox agreed to help.”) as well as 3D Realms’ legal action against Gearbox over royalty payments, which the former voluntarily withdrew with apologies and explained as a misunderstanding of the agreement.
The teaser site remains online, only with an Emergency Broadcast System icon obscuring the countdown.
Luke is Games Editor at IGN AU. You can find him on IGN here or on Twitter @MrLukeReilly, or chat with him and the rest of the Australian team by joining the IGN Australia Facebook community.
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