Game Over: Fenwick & West Sends Copyright Case Back to the Grave

October 22, 2008 (Mountain View, CA) LAWFUEL – Fenwick & West today announced it has won a motion to dismiss, with prejudice, all copyright, trademark and related claims asserted by the MKR Group, holder of the rights in the 1979 horror film George A. Romero’s Dawn of the Dead, against its longtime client Capcom, a worldwide developer and distributor of video games including the wildly popular Dead Rising, the video game at issue in the litigation. Both the film and the game feature humans battling hordes of flesh-eating zombies in a suburban shopping mall during a massive zombie outbreak.

MKR originally threatened to sue Capcom while Dead Rising was still in development, claiming the game bore too many similarities to Dawn of the Dead. Though Capcom disagreed with MKR’s position that the game and the movie shared any similarities protectable under copyright or trademark law, it took the precautionary measure of including a prominent disclaimer on Dead Rising’s packaging upon the game’s release in August 2006, disavowing any affiliation with the film or its owners. The MKR Group nonetheless continued to threaten suit.

Settlement negotiations dragged on for over a year with other counsel when Capcom’s internal legal team sought out the counsel of Fenwick & West partner Rodger Cole and newly-elected partner Jennifer Kelly. After MKR again threatened to sue Capcom, as well as its business partners, Microsoft and Best Buy, Capcom took action, filing a complaint for declaratory relief in the Northern District of California on February 12, 2008. Capcom’s complaint sought a declaration that Dead Rising does not infringe any copyright, trademark, or other intellectual property rights belonging to MKR because any similarities between Dead Rising and Dawn of the Dead are based on the wholly unprotectable idea of humans battling zombies in a shopping mall, and that its distribution, marketing and promotion of Dead Rising is not likely to confuse consumers as to the source or origin of the game or to dilute any alleged distinctiveness of any trademarks held by MKR, particularly in light of the disclaimer.

MKR, in turn, filed a third party complaint and counterclaims against Capcom claiming copyright infringement, violations of the Lanham Act and assorted violations centered on trademark infringement, unfair competition, misappropriation, and dilution. Capcom filed a motion to dismiss all of MKR’s claims on June 11, 2008. Magistrate Judge Richard Seeborg granted the motion, in its entirety, on October 20, 2008, dismissing all claims with prejudice on the basis that amendment would be futile.

Partner Rodger Cole said, “Much thanks and credit goes to the team including Jennifer Kelly and MaryBeth Milionis who took over a muddled situation against a well-funded opponent and achieved victory on all substantive legal issues. We sought to protect our client against unfounded claims in a challenging venue and thanks to our imaginative defense, we did.”

Fenwick & West’s litigation team consisted of litigation partner Rodger Cole and associates Jennifer Kelly and MaryBeth Milionis.

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