Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

We're here today to discuss the greatest threat to the world as we know it: Zombies. Or, rather, how that particular threat has become the topic of a lawsuit over who controls said brain-eating, reanimated corpses. Before I start commenting on the suit, I have to put forth this bit of a disclaimer: I'm not privy to the court documents, and my commentary is purely speculative. That being said, there are a lot of problems with this suit from a theoretical standpoint.

The suit cites, specifically, both trademark and copyright claims. I have my doubts about either claim being successful, but I'll begin with the trademark issue. For those not familiar, intellectual property law has three major areas that involve Federal registration in the US: patent, trademark, and copyright. In short, patents protect ideas, trademarks protects brands, and copyrights protect expressions. The trademark claim, then, likely involved some issue of dilution or confusion between George A. Romero's 'Dead' movie series (specifically Dawn of the Dead) marks and the 'Dead Rising' mark. Without some pretty substantial evidence, I don't think MKR group has much of a case based on this claim.

Trademark suits typically revolve around similarity. That is, either consumers are confused about who made something because its name is so similar to another product, or the names are so similar that one name reduces the value of the other. If you want to read up, there are plenty of resources on infringement (likelihood of confusion) and dilution on the web. The point being that the names generally have to be pretty similar. While Dead Rising and Romero's Dead movies all have 'dead' in their titles, I don't think there's enough actual confusion or injury to support a trademark claim.

First, on the idea of likelihood of confusion, there are a number of elements the court looks to in order to resolve the claim. Most of these elements don't have much merit. The names aren't that similar, other than a common word. I'm not aware of any evidence of actual confusion between the names. The goods, while both entertainment purchases, are in entirely different mediums. The likely expansion of each line is fairly unlikely to move into each other's realm, unless 'Rising of the Dead' is a planned movie sequel title (and incidentally, if it is, that title is awful). Finally, the consumers of zombie movies and games are actually a pretty careful bunch, and will likely know the difference between the titles. Under a dilution theory, again, while the Dead movies have certainly acquired secondary meaning, it doesn't mean the owners of the mark can foreclose the use of the word 'dead' in all zombie related materials.

The far bigger potential claim is the copyright infringement claim, which I still don't believe has much validity to the argument I expect is being made. The summary of the claim is that Dead Rising is also a zombie story, set in a mall with commentary toward mall culture, and also a dark comedy like Dawn of the Dead. While all of those points are true, none provide a grounds for a copyright claim. Copyright is a protection of expression, whereas patent law is a protection of ideas. The similarities in this case are ones of idea, not expression. This idea versus expression concept is really rather complex, but if you would like to read more, try this link.

When the court looks to determine infringement, they look for a "striking similarity," which does not seem to be present between Dawn of the Dead and Dead Rising. Elements that are considered for similarity: plot (both the broad and specific elements), setting, characters, dialog, and any other story elements that may be distinctive. While both of the works in question are zombie stories in a mall, the characters and more specific elements of the plot are completely different. The dialog doesn't have any identical passages. The malls themselves are different. By looking at these elements as a big picture, the differences far outweigh the similarities.

Moreover, anyone who actually examines the zombie mythos of each of the materials would realize that the actual zombies don't share a lot in common. The Dawn of the Dead zombies are all sorts of risen corpses reanimated by an unexplained plague. By contrast, the Dead Rising zombies are only created when *potential spoilers* a live person is stung by a queen or bitten *end of spoilers* which follows the more Resident Evil-esque zombie infection theory. Again, though, these are broad ideas and copyright protects the expression, not the idea.

Finally, an argument could be made that Dead Rising is somehow a derivative work of Dawn of the Dead, but again, I don't believe it would be successful. The idea of a derivative work is a work based on the previous, such as a sequel or prequel or fan fiction or remake. The right to create derivative works vests in the copyright holder, but again, given the lack of similarity between the works, it would be unlikely to view Dead Rising as a derivative of Dawn of the Dead. It's unlikely the two even could exist in the same universe.

About the best intellectual property theory I can come up with that might be successful would be a trade secret case in the following unlikely scenario (which still doesn't account for the fact that the Dawn of the Dead zombies can reanimate dead corpses versus merely infecting live people):

Somewhere on an original script, George A. Romero wrote out that the actual cause of the zombie outbreak was transmission by infected insect. This was to be revealed in some Dead movie sequel yet to be released (Diary of the Dead?) and somehow a Capcom employee was able to get this script and then decided to use that idea to make Dead Rising.

Yes, it sounds pretty improbable to me, and I'm sure it sounds pretty improbable to most anyone who reads it. So, short of a fact scenario such as that, evidence of some actual confusion on the trademark, or many more borrowed plot elements, characters, etc. than I can remember from the last time I watched Dawn of the Dead, I don't see a very strong lawsuit. Again, without seeing the actual court filings, most of this is speculative, but I would certainly be interested to read the lawsuit to see if there is some far more creative theory on which the MKR Group is resting their hopes in this matter.

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Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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