Duke vs. Duke – The Epic Trademark Battle That Never Happened

Alright everybody, file this one under: “Wow, he really likes video games and cartoons.”

After my last fun post about Crazy Taxi, I got to thinking about two more great characters from my childhood – Duke Nukem (of Apogee \3d Realms fame) and Duke Nukem (Captain Planet’s radioactive nemesis). How could two identically named characters both exist during the same time in history and there not be a big fight about it?!

A Little Background

“Captain Planet” is a cartoon that started in September 1990 and was the creation of Ted Turner (among others). It was a show about nature, ecology, and protecting the environment. Cap also had a green mullet, the Planeteers had magic rings, and Whoopi voiced Gaia….what more could a 5 year old kid want? In the show, Cap faces countless villains – one of them being a radioactive monster named “Duke Nukem.”

“Duke Nukem” is the name of a video game that was created by Apogee Software in 1991. The company, and the game franchise in particular, has its own storied history of broken hearts, stolen intellectual property, and trademark disputes, but that’s for another day and another post. Duke Nukem is the title character of the game – and basically – he blows stuff up. If you ever played Wolfenstein, Doom, Quake, or Blake Stone (also an Apogee game), Duke Nukem laid the groundwork for their collective success.

Can There Be Two Dukes?

There are two Dukes, so I guess the answer is…yes? But why?

By the time Apogee was ready to release Version 2 of their Duke Nukem game, the company was aware of Captain Planet and had concerns that the “Duke Nukem” trademark may have already been registered. In a (half hearted) attempt to avoid a lawsuit, Apogee changed the name of Duke Nukem to “Duke Nukum” prior to release (notice the E\U change in spelling). Later, after realizing that Ted Turner had not registered the “Duke Nukem” mark, Apogee changed the name of the game back – and registered the trademark. So…if any of you have a 3.5 inch floppy sitting around with Version 2 on it, it could be worth something! (I did….it was thrown away!)

We know that Apogee was aware of a potential problem – but we also know that Turner did nothing about it. Why? The reasons could be various – money (and marketing) being two factors that I think, weighed pretty heavily. That said, Apogee got off super easy – – for clients today, here are a few things to keep in mind:

1. Don’t make the mistake Apogee did! Don’t invest in a name for a new product without knowing if you can protect it in the long run! Apogee rolled the dice and won big….that doesn’t happen very often.
2. It’s not 1991 anymore! That’s right! Companies today are way more protective of their intellectual property rights. Ted Turner might not have cared in 1991, but I guarantee you we would get a C&D Letter from Apogee (and their successors) today if your new product was called “Duke Nukem Hair Care.”
3. Back in 1991, people actually had to read a paper document called the Trademark Gazette to keep track of new filings that could potentially infringe on their existing marks. In other words, it was much easier to fly under the radar and avoid scrutiny – not so today.

So, don’t get nuked! If you need help with a trademark search or registration – OGS is here for you!