[xMobilemux]

Lunick, on 26 March 2014 - 11:01 PM, said:

Fred posted a folder of Time to Kill stuff but never confirmed what it actually was. Land of the Babes was not mentioned either so no idea where you got that from.

[Malgon]

This is all very confusing. So what do each of the companies actually own?

[Lunick]

xMobilemux, on 26 March 2014 - 11:07 PM, said:

Is that in a PM or was it posted on the forums somewhere?

[xMobilemux]

Lunick, on 26 March 2014 - 11:33 PM, said:

Is that in a PM or was it posted on the forums somewhere?

It was a PM.

[Kristian Joensen]

Assigment in gross seems to invalidate a trademark: http://www.quizlaw.c...nt_in_gross.php

Edit:

This website has a more nuanced claim: http://definitions.u...-in-gross-rule/

[Tea Monster]

This is ridiculous.

[Hendricks266]

xMobilemux, on 26 March 2014 - 11:07 PM, said:

Zero Hour is far better than either TTK or LotB. Focus on Zero Hour.

I repeat.

Zero Hour is far better than either TTK or LotB. Focus on Zero Hour.

[Daedolon]

ooooooooooooooooooooooooooooOOOOOOOOOOOO

[xMobilemux]

I'd say bring all 3 third person shooter Duke games to the PC and other platforms, but Eurocom went bankrupt and it's likely they won't get Zero Hour's assets, N-space however is still around and it looks like they were able to get the assets for TTK and LOTBs, unless 3DR somehow had them, I would of thought N-space would have deleted the assets of those games, just my assumption.

Just my opinion, but I didn't like Zero Hour, can't bring myself to finish it, maybe it's the controls or the something I don't know why, but I just don't like it. Still if they could bring it to PC, fucking bring it to PC!

[DukeNukem64]

Kristian Joensen, on 26 March 2014 - 11:51 PM, said:

Assigment in gross seems to invalidate a trademark: http://www.quizlaw.c...nt_in_gross.php

Edit:

This website has a more nuanced claim: http://definitions.u...-in-gross-rule/

So what does this mean, kristian?

[Tea Monster]

From that site...

Quote

Anti assignment in gross rule is a principle of trademarks law whereby assignment of a mark without the goodwill symbolized by the mark is invalid. Even though the trademark rights are not destroyed when a mark is assigned in gross, the failure of the assignor to continue to use the mark, together with an ineffective transfer, may result in abandonment.

INAL, but looking at it like that, if you take into account the boldened bits, then you could argue that as they were only given the future rights, not the rights to the original Duke 3D and past Duke titles, that this could be be seen as assignment without goodwill and/or an ineffective transfer. Apart from that, you could spin it that since GBX haven't made any noises about a Duke game since DNF was released, that could be put in court that the assignor hasn't continued to use the mark. I think what he's saying is that you could push for abandonment of the trademark by GBX, whereupon it would revert back to Apogee/Interceptor/3Dwhateveritisnow. That is, of course, if you can make it all hold together in front of a judge.

[Lunick]

Tea Monster, on 27 March 2014 - 02:54 AM, said:

That is, of course, if you can make it all hold together in front of a judge.

[Micky C]

Gvien that it's almost 3 years since DNF came out without any mention of another Duke game, if I were the judge I'd believe they'd abandoned it

Given how Gearbox treat their fans and third party IPs I really hope 3D gets the full rights to Duke (does anyone feel otherwise?)

[X-Vector]

A more elaborate exploration of the legal doctrine involved: https://www.floridab...5256ADB005D62DF

Quote

In determining whether a proposed trademark transfer will divorce a trademark from its business, the practitioner will anticipate the inquiry of a reviewing court and examine the transaction for evidence of a bona fide business transfer. Traditionally, assets have been the hallmark of a business acquisition, but other evidence may include the assignee actually taking over the assignor's operations or sales territory, hiring the assignor's management, or continuing the assignor's advertisements. In continuing the existing business of the trademark, the assignee need not purchase the assets of the assignor if the assignee can maintain the identity of the mark with existing business assets.

I don't really see a valid reason why the acquisition of the Duke Nukem trademark by Gearbox should constitute an "assignment-in-gross".
Pitchford & co. did not seperate the trademark from its business (computer game software for entertainment purposes) and took over some of 3D Realms' Duke Nukem assets (DNF), former key design personnel (Triptych), sales territory and advertisements.
The only argument I can see for 3DR's claim is the non-exclusive nature of the transfer of the Duke Nukem brand (i.e. 3DR are allowed to continue to sell the old DN titles and allegedly release "Duke Nukem Survivor"), but I gathered that was the specific condition of the deal that both parties agreed on in good faith.

[Kristian Joensen]

X-Vector, on 27 March 2014 - 03:16 AM, said:

A more elaborate exploration of the legal doctrine involved: https://www.floridab...5256ADB005D62DF

[/size][/font]

I don't really see a valid reason why the acquisition of the Duke Nukem trademark by Gearbox should constitute an "assignment-in-gross".
Pitchford & co. did not seperate the trademark from its business (computer game software for entertainment purposes) and took over some of 3D Realms' Duke Nukem assets (DNF), former key design personnel (Triptych), sales territory and advertisements.
The only argument I can see for 3DR's claim is the non-exclusive nature of the transfer of the Duke Nukem brand (i.e. 3DR are allowed to continue to sell the old DN titles and allegedly release "Duke Nukem Survivor"), but I gathered that was the specific condition of the deal that both parties agreed on in good faith.

I get the feeling the whole trademark assignment in gross thing is secondary to their defense. If they court finds they have a valid license to Duke Nukem Survivor AND that Mass Destruction is covered by that license they should be home scott free without the need for the court to address the assignment in gross angle. In lawsuits you will tend to throw everything including the kitchen sink at your opponents and hope it sticks. AFAIK lawyers can get in trouble if there are defenses they could have used that they don't use. But maybe that is only in criminal cases. But defenses that you don't claim in an initial trial can't be used in appeals.

[Ronin]

Micky C, on 27 March 2014 - 03:10 AM, said:

Gvien that it's almost 3 years since DNF came out without any mention of another Duke game, if I were the judge I'd believe they'd abandoned it

Given how Gearbox treat their fans and third party IPs I really hope 3D gets the full rights to Duke (does anyone feel otherwise?)

I would much rather 3DR get the rights back and outsource Duke games to young hungry developers like Flying Wild Hog and Interceptor than have Shovelware just sit on the IP saying nothing. At least Interceptor are actively trying to make a Duke game and get Time to Kill on PC. Shovelware just sit on top of their mountain of dlc and money firing lazers at anyone who tries to do anything with Duke, fuck em.

[MusicallyInspired]

Tea Monster, on 27 March 2014 - 02:54 AM, said:

That is, of course, if you can make it all hold together in front of a judge.

They're demanding a jury trial too, though.

[Tea Monster]

Can you imagine what the summing up will sound like? Can you honestly imagine 12 people who aren't privy to what has happened to even make heads or tails of the situation, let alone decide who is in the right? After hours of recounting just a bare and cut-down version of events, you can just see 12 looks of "Dafuq??!!!??!" on their faces before they are told to go forth and make sure that justice is done. We are fans and have been following it intently for the past 13 years, and we just found out that we have no clue what is really going on. Those poor gits have no chance whatsoever.

[-Rhetro-]

Tea Monster, on 27 March 2014 - 06:29 AM, said:

Can you imagine what the summing up will sound like? Can you honestly imagine 12 people who aren't privy to what has happened to even make heads or tails of the situation, let alone decide who is in the right? After hours of recounting just a bare and cut-down version of events, you can just see 12 looks of "Dafuq??!!!??!" on their faces before they are told to go forth and make sure that justice is done. We are fans and have been following it intently for the past 13 years, and we just found out that we have no clue what is really going on. Those poor gits have no chance whatsoever.

Could it be that GBX owns only the rights to Duke Forever and that 3DR still had the Duke Nukem rights. Really though they have a point if they have the rights to a future game with a tentative title, where as it could change to Mass Destruction. There has to be more to it then that for all this hoopla to unfold.

[Frederik Schreiber]

About assignment in gross. Just to clarify. All goodwill has to be acquired, for the trademark transfer to be valid.

To respond to Zero Hour.
With the acquisition, the only game we didn't receive the source codes to, was Zero Hour.
We are currently trying to get our hands on it.
Zero Hour is a very high priority for us.

I will keep you updated.

[Lunick]

Frederik Schreiber, on 27 March 2014 - 01:14 PM, said:

...the only game we didn't receive the source codes to...

Can you be a little more specific here? Do you mean the only Duke game or do you mean every 3D Realms/Apogee title.

[Jimmy]

Release Endangered Species as free-ware.

[Frederik Schreiber]

Lunick, on 27 March 2014 - 01:48 PM, said:

Can you be a little more specific here? Do you mean the only Duke game or do you mean every 3D Realms/Apogee title.

The only game source 3DR didn't have a copy of was Zero Hour, as Eurocom closed it doors.
We are trying to acquire those files from the prev. owners.

The rest have been secured.

[Lunick]

So you're saying that the source codes to Duke Nukem 1 and 2 are not lost then after all?

[Jimmy]

Duke4.net member Fox has been in contact with Bill Beacham from EuroCom before. I don't know if you have contacted anyone from that camp, but he still seems somewhat enthusiastic about their Duke Nukem games.

[xMobilemux]

What about Duke Nukem: Man of Valor/D-Day that was meant to come out on PS2, did you guys get that?

[Frederik Schreiber]

We haven't been through all of the archives yet.

There are literally hundreds of CD and HDD backups from the past 20 years. We secured what we felt was the most important, which we would love to share with you guys some day. Some of this, being ports of Zero Hour and Time to Kill

That's all I can say for now.

[Lunick]

[Jimmy]

I would say something important to look for is unused/planned & scrapped Duke3D content. We know for example that there was a planned patch/addon after Atomic Edition that got scrapped. This is evidenced by Dirk Jones' picture showing some voxels he made, confirming a rumour that 3D Realms wanted to update Duke3D to be comparable to Shadow Warrior and Blood in terms of technology.

[MusicallyInspired]

-Rhetro-, on 27 March 2014 - 01:02 PM, said:

Could it be that GBX owns only the rights to Duke Forever and that 3DR still had the Duke Nukem rights. Really though they have a point if they have the rights to a future game with a tentative title, where as it could change to Mass Destruction. There has to be more to it then that for all this hoopla to unfold.

No, I think it's more like they DID get the rights to Duke Nukem but now 3DR are claiming they didn't honour the terms and conditions of the transfer so now they're saying the transfer is void on those grounds.