MDK Sues Capcom Over Dead Rising

MDK, perhaps spurred by Capcom's seeking of a declaratory judgment of non-infringement, has sued Capcom claiming that C's popular Dead Rising infringes on the copyrights and trademarks associated with Dawn Of The Dead. Capcom claimed that the scenario of Zombies attacking a mall is an "unprotectable theme". MDK cared to differ offering, "both works are dark comedies [where] the recreational activities of the zombies and absurdly grotesque 'kill scenes' provide unexpected comic relief...both works provided thoughtful social commentary on the 'mall culture' zeitgeist, in addition to serving up a sizable portion of sensationalistic violence."

MDK Sues Capcom: Sensationalistic!

I haven't played Dead Rising, but from a only-judging-a-book-by-its-cover perspecitive, Dead Rising does look a lot like Dawn of the Dead. For copyright infringement, there must be actual copying (showing this could be problematic because surely the theme of zombies being killed in suburbia has been done before). TM infringement on the other hand relies on a likelihood of confusion standard, regardless of whether the idea is copied or not. It seems like there is a great likelihood of confusion, but it will be interesting to see how the courts classify the DotD mark - probably descriptive, and therefore not warranting as much protection as a suggestive, or fanciful term (they may even claim it is generic, but I think that generic term would be something like, Zombie Movie). It seems like Capcom has admitted that there is a likelihood of confusion by including a disclaimer on the box, but then again, the disclaimer may be enough to limit or eliminate any liability.