Video game developer 3D Realms is best known in the gaming community for the popular Duke Nukem series in which a wisecracking, ultra-macho action hero comes out of retirement to save the world from various evildoers. 3D Realms’ latest release, Ion Maiden, largely follows in Duke Nukem’s footsteps and was originally due in early 2019. That was until it came to the attention of a certain British rock band…

Hallowed be thy name

On 28 May 2019, Iron Maiden filed a lawsuit for trade mark infringement and unfair competition against 3D Realms at a Californian District Court. Iron Maiden are known to many as one of the most influential heavy metal bands of the past 40 years. In that time, they’ve have sold more than 90 million records and staged more than 2,000 concerts across 63 countries. The lawsuit cites the band’s enormous reputation and goodwill in the name IRON MAIDEN, as well as a number of US trade mark registrations covering, among other things, “video games”.

According to the lawsuit, the name ION MAIDEN is almost identical to IRON MAIDEN and 3D Realms’ choice of names is described as a deliberate effort to confuse consumers to believe that the game is somehow affiliated with, or approved by, Iron Maiden. Reference is also made to online articles and comments about the video game where fans queried whether it was in fact an Iron Maiden game. Some Iron Maiden fans are even said to have wondered how 3D Realms obtained a licence to use the band’s name, while others are said to have been genuinely excited about the possibility of Iron Maiden songs featuring as a soundtrack to the game. The lawsuit includes a request for various legal remedies, including statutory damages of $2,000,000 and an injunction to prevent further infringement of the band’s trade mark rights.

Where eagles dare

The bold choice by 3D Realms to adopt the visually and phonetically similar name ION MAIDEN for its new game does make some commercial sense. From a non-legal point of view, one could see this choice as a tongue-in-cheek play on words and even an homage to the legendary British rock band. Consumers would no doubt be intrigued by the title of the game and this could have a positive impact on sales in the long run. However, from a legal point of view, it’s easy to see the potential for consumer confusion around the rock band’s connection with the game, thus giving rise to a cause of action for Iron Maiden’s lawyers.

Such confusion is not only bad for consumers, but also for Iron Maiden. The band would have no control over how such a similar name is to be used in the marketplace and the impact this may have on its brand. If for example, the content, plot and quality of the game disappointed those who played it, this could cause irreparable damage to the reputation and goodwill embodied by the Iron Maiden name.

Trade mark litigation — remember tomorrow

On 11 July 2019, 3D Realms announced that the game would be released under the new title Ion Fury in order to “avoid legal issues with a certain popular heavy metal band”. The new name is clearly distinguishable from the IRON MAIDEN trade mark and in my view, this is certainly a wise move. Judging by the reaction from the gaming community, it also doesn’t look like the name change has at all dampened the excitement and anticipation surrounding its release.

When faced with the prospect of litigation, it’s in the interests of all parties concerned to find a way to settle the matter outside the courtroom. By undertaking other forms of dispute resolution (such as negotiation), the distraction of an expensive and time-consuming lawsuit can be avoided. Even if you’re successful at court, the case may end up costing more than the matter is worth. It’s therefore always important to carefully consider the value of contesting such cases (particularly where a simple name change will do) and to always remember tomorrow.