A Tale of Two Gorillas: The Story of an Underdog (Under-Ape?) – Intellectual Property

March 8, according to questionable sources, was National Retro Video Game Day in the US. As one of the Foley Hoag several Resident video game nerds, this reminded me of one of my favorite IP controversies related to video game.

In the 1970s, a nearly-century-old Japanese gaming card company by the name of Nintendo began branching into electronic games, and in 1979 they began a silver-coined arcade gaming segment. In 1981, the company released its first one bona fide hit: the original arcade version of Donkey Kong. Donkey Kong’s concept is that the giant titular ape (naturally) has kidnapped a woman, “Lady” (later known as “Pauline”), and carried her to the top of a metal girders structure. The character needs an anonymous player – some mustachioed random dude jumping in a red cap and red rags called a “Jumpman,” and then, you guessed it, Mario – he has to climb to the top of the structure, while and avoids throwing barrels at Donkey Kong, to save the Lady.

The creator of Donkey Kong, the legendary game designer of Shigeru Miyamoto, says he chose the name “Donkey Kong” because he wanted a name that embodied the idea of ​​”a silly ape.” ” The element “Kong” was borrowed from another famous ape, King Kong, and in fact Miyamoto later confirmed that the term “King Kong” was a common term in Japan to denote any kind of big breast (if you are not aware, large animals are kind of a thing in Japan). The “plot” (to be charitable) of Donkey Kong was also similar to the different ones King Kong media – ie, a big ape catching a woman and climbing up a building for … reasons.

These things were not lost on Universal City Studios, the steward at that time (or so he said) of the King Kong franchise, which had plans to import its share yourself great ape to video games. In 1982, Universal filed a suit in New York’s Southern District for trademark and copyright infringement, and it also threatened, and outlawed license fees from, various Nintendo licensees in the United States. SA Donkey Kong. Nintendo, represented in the lawsuit by one John Kirby, dismissed Universal’s claims systematically, raising major questions about trademark and copyright ownership, including Universal’s reality yourself had successfully argued in a separate lawsuit seven years earlier that the conspiracy of the King Kong he was in the public domain. With regard to the trade claims, the court found that Universal did not acquire trading rights in KING KONG because (a) it did not receive them properly, and (b) KING KONG no longer acted as a token store. The court then found that there did not appear, at least, to be any confusion; noting, “at best, Donkey Kong is a member of King Kong,” the court maintained support for Nintendo.

In 1984, the Second Round upheld a lower court decision, stating that “the two buildings have nothing in common but a gorilla, a captured woman, a male rescuer, and a construction situation, ”And that” the ‘Kong’ and ‘King Kong names are widely used by the public and are associated with apes and other items of great size. “

Nintendo was so pleased with John Kirby’s performance that he – in addition to his fees, naturally – gave him a sailing ship, he was baptized Donkey Kong, along with an accessible trademark license to restrict worldwide rights to use the DONKEY KONG brand for sailboats. More relevant for the future, Shigeru Miyamoto named a different video game character, the all-powerful pink puffball Kirby, after John Kirby. Kirby has now starred in dozens of games, anime, and manga, and joins (revamped argument) Donkey Kong and Mario as one of the most beloved (and multi-million-dollar) mascots. ) at Nintendo. And if John Kirby had been something so effective? Mario Mario’s loose plumber would surely have survived, but the rest of Nintendo’s lineup might look very different today.

Speaking of Mario and questionable holidays, yesterday – March 10 – Mario Day, was chosen because the abbreviated date can be read as MAR10. I’ll see if I can wake up some interesting Mario IP issues for a future post!

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