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Capcom Co., Ltd. v. MKR Group, Inc., 2008 WL 4661479 (N.D. Cal. Oct. 20, 2008).
Factual Background Edit
Plaintiff, Capcom Co., developed a videogame, "Dead Rising," in which the main character battles zombies in a small town shopping mall and tries to escape by helicopter. Defendant, MKR Group, Inc., owns the rights in the movie "George A. Romero’s Dawn of the Dead," which involves four main characters battling zombies in a small town shopping mall and ends with two of the characters escaping by helicopter.
Capcom contacted MKR about licensing certain elements of "Dawn of the Dead," but the parties did not come to an agreement. When Capcom distributed the videogame, the package included the following disclaimer:
|“||THIS GAME WAS NOT DEVELOPED, APPROVED OR LICENSED BY THE OWNERS OR CREATORS OF GEORGE A. ROMERO'S DAWN OF THE DEAD™.||”|
Trial Court Proceedings Edit
Capcom filed suit seeking a declaration that its videogame does not infringe the copyright, trademark or other intellectual property rights in defendant’s movie. MKR filed counterclaims for, among other things, copyright and trademark infringement. The court granted plaintiffs’ motion to dismiss all the counterclaims.
|“||A comparison of the movie and the video game reveals profound differences. MKR has not identified any similarity between Dead Rising and any protected element of Dawn of the Dead. Rather, the few similarities MKR has alleged are driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak. Each one of MKR's claimed similarities, as analyzed below, ultimately must be ‘filtered’ out as unprotectable . . . . Nearly all the similarities between the two works identified by MKR, upon close scrutiny, constitute nothing more than a collection of unprotectable elements thereby failing the extrinsic test and sending the copyright claim to its doom.||”|
Regarding the trademark infringement claim, defendant argued that plaintiff was trying to capitalize on: (1) Romero's name on a disclaimer; (2) the term “dead” in its title; and (3) the zombie head design trademark on Dead Rising's packaging. The court dismissed these claims and held that plaintiffs’ use of the title of defendant’s movie in a disclaimer on the videogame packaging is a nominative fair use; the titles of the two works are not confusingly similar even though they both contain the word “dead”; and the depiction of zombies on the videogame packaging does not resemble defendant’s trademarked zombie head.