Braaaains! And lawyers, too.

Here's a groovy news item from my dear wife (honey, you know I'm just kidding about that headline, right? Sweetheart? Ummm, am I in trouble?). Apparently, this game allows players to mow zombies down with a riding mower, which sounds too awesome for words. Maybe not as cool as Ash in Army of Darkness plowing through the undead with an anti-zombie propeller jury-rigged to his 1970s sedan, but still pretty slick. Anyway, without further ado ...

In a Battle of Zombie Killers, Fenwick & West Slays Kenyon & Kenyon
How appropriate that with Halloween approaching we have a litigation tale about zombies. On one side is Fenwick & West's client, the video game maker Capcom. In 2006 Capcom released "Dead Rising," a video game that revolves around a freelance photojournalist on assignment in the fictional town of Willamette, Colorado. The photographer's mission is to unlock the mystery of why the U.S. quarantined the town--which turns out to be populated with zombies. Players help him battle the zombies, survive for three days, and return with the evidence needed to solve the puzzle.

If you think that plot sounds a little like the 1979 indie hit "Dawn of the Dead"--in which a group of people try to survive an epic zombie attack at a suburban shopping mall--you're not alone. According to Capcom's lawyers, MKR Group, which owns the trademarks and copyrights to the movie, threatened to block the release of "Dead Rising" back in 2006. Capcom marketed the game anyway, though with a disclaimer stating that it was not connected with the "Dawn of the Dead."

Apparently still spooked by MKR's threats, Capcom filed a complaint in the Northern District of California against MKR in February 2008, seeking a declaratory judgment that it did not infringe MKR's intellectual property rights. (That's right--even zombies are intellectual property.) MKR, represented by Kenyon & Kenyon, turned around and filed a complaint against Capcom, alleging trademark and copyright infringement, unfair competition, misappropriation, and dilution.

In a decision made public this week, San Francisco federal magistrate judge Richard Seeborg granted Capcom's motion to dismiss all of MKR's claims with prejudice. Judge Seeborg, who has become quite the zombie expert, concluded that there were "profound differences" between the movie and the game, and that "the few similarities MKR has alleged are driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie breakout." We're guessing that wasn't a sentence Seeborg envisioned writing when he first took the oath of office.

Fenwick & West partner Rodger Cole, who represented Capcom, was not immediately available for comment. He was joined by associates Jennifer Kelly and MaryBeth Milionis. Kenyon & Kenyon's Jonathan Reichman, who represented MKR, declined to comment.