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Gearbox starts legal action against 3D Realms

Unauthorised Duke Nukem game with Interceptor Entertainment marks new chapter in ongoing saga

Gearbox Software has filed a trademark complaint against 3D Realms and Interceptor Entertainment over the development of a new Duke Nukem game.

According to a document filed with the Dallas court, Gearbox is seeking damages and an injunction against Duke Nukem: Mass Destruction, a new project on which 3D Realms and the Danish developer Interceptor Entertainment are collaborating.

Gearbox acquired almost all of the Duke Nukem IP rights - "with very limited exceptions" - as part of an asset purchase agreement in February 2010, which ultimately led to the release of the infamous Duke Nukem Forever. However, Gearbox has accused 3D Realms of subsequently trying to, "privately convince others that the sale never happened," leading directly to the creation of Mass Destruction.

"By attempting to license the unlicensable, assign the unassignable, and effectively re-sell the exclusive rights that Gearbox already purchased in 2010, [3d Realms] breached the terms of its [asset purchase agreement] with Gearbox, as well as Gearbox's exclusive, federally-protected intellectual property rights.

"Unfortunately, the 3D Realms-Interceptor maneuver has left Gearbox with little choice but to bring these claims."

"Unfortunately, the 3D Realms-Interceptor maneuver has left Gearbox with little choice but to bring these claims"

Duke Nukem: Mass Destruction was announced with the launch of a website - now offline - on February 1, 2014. The stated release date was February 25, though the game had apparently been in development since September 2013. Gearbox issued a cease and desist letter on February 13, and received a reply from 3D Realms' Scott Miller and George Broussard on February 16.

"I am aware that Exhibit 2.2 of the APA states that 'all future development in the Duke IP' is a development right exclusively held by Gearbox.," the letter stated. "As such, only Gearbox has possessed the right to use the Duke IP in the development of any and all new Duke Nukem games, ancillary projects and materials since February 2010.

Because such rights belong to Gearbox alone, development efforts such as 3D Realms' Duke Nukem: Mass Destruction effort with others was not only unauthorized, but a material infringement of Gearbox's rights. I apologize to Gearbox for the infringement and breach represented by my efforts."

Gearbox believes that the admissions in 3D Realms' response constitute a wilful and malicious breach of the terms of the Duke IP acquisition

In a section prefaced by the quote, "No good deed goes unpunished," the document also highlights the altruistic slant of the Duke Nukem asset deal in 2010. As readers of almost any games industry website will be all too aware, 3D Realms struggled to complete Duke Nukem Forever for more than a decade. By the time Gearbox stepped in, 3D Realms was involved in legal proceedings with Take-Two over its failure to complete the game.

"For those disappointed by the Duke Nukem Forever content that 3D Realms bungled between 1997-2009, 3D Realms misery now had the company of its rescuer, Gearbox"

According to the version of events provided by Gearbox, a "desperate" 3D Realms asked Gearbox to make a deal so that it could avoid litigation and finally complete Duke Nukem Forever. A "bailout package" was prepared, and Gearbox soon realised that it had taken on a "sorely deficient" product. "The mountain of problems subsequently uncovered by Gearbox cannot be captured in this single pleading."

"As it turns out, 3D Realms was the ultimate beneficiary of its so-called 'deal among friends.' After all: 3D Realms was freed from the litigation it could no longer afford to fight, 3D Realms' principals received a generous financial guarantee, and Duke Nukem Forever was finally shipped. None of this was likely to occur in the absence of Gearbox's prompt, generous support. And, for those disappointed by the Duke Nukem Forever content that 3D Realms bungled between 1997-2009, 3D Realms misery now had the company of its rescuer, Gearbox."

The document also references 3D Realms' attempt to sue Gearbox for extra royalties following the release of Duke Nukem Forever. The complaint was hastily withdrawn once Gearbox had an opportunity to clarify its position, and 3D Realms' Scott Miller issued a full apology for the "misunderstanding" that initiated the legal action.

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Matthew Handrahan avatar
Matthew Handrahan: Matthew Handrahan joined GamesIndustry in 2011, bringing long-form feature-writing experience to the team as well as a deep understanding of the video game development business. He previously spent more than five years at award-winning magazine gamesTM.
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