Universal tries to stop Nintendo’s arcade gorilla using King Kong trademark claims. The judge examines the game, watches the films, and dismisses the complaint.
Two gorillas enter the courtroom. Only one brings barrels.
On Thursday, 22 December 1983, a federal judge in New York dismissed Universal’s trademark and unfair-competition complaint against Nintendo over Donkey Kong.
Universal had sued in 1982. Its argument was that Nintendo’s enormously successful arcade game infringed rights associated with King Kong.
The resemblance offered an obvious starting point: a gorilla, a captive woman, a rescuer, and a building. Whether those ingredients made the game legally confusing was another question.
The court investigated with unusually appropriate equipment.
At an August hearing, a game master demonstrated Donkey Kong. Relevant scenes from the 1933 King Kong film and its 1976 remake were screened. Judge Robert Sweet later described the hearing as an enjoyable court day, with the paperwork as its less entertaining component.
This was not simply a contest to decide which gorilla had appeared first.
Universal needed to establish the trademark rights it claimed and show why consumers might confuse Nintendo’s product with its own. The judge found its asserted King Kong trademark did not identify a single commercial source. He also found the game and films sufficiently different to defeat the confusion claim.
Nintendo’s gorilla could keep throwing barrels.
Universal appealed. On Thursday, 4 October 1984, the Second Circuit upheld Nintendo’s victory, focusing on the absence of a genuine factual issue about likely consumer confusion.
The appeals court rejected the idea that sharing the word Kong settled the matter. The names had to be considered as a whole, not reduced to their common fragment.
Behind the dispute sat another remarkable chapter: Universal had previously sought permission through litigation to make its own King Kong film, arguing that the underlying story was in the public domain.
That history makes an excellent irony. It does not make copyright and trademark the same thing, or establish that every King Kong film, image, and adaptation was free to use.
Nor did Nintendo win merely because Universal had changed its argument. The decisions examined the claimed trademark and the actual likelihood of confusion.
A giant movie gorilla had become the basis of an attempt to restrain a smaller arcade gorilla.
The court played the game. Nintendo stayed in the game.
A film studio’s attempt to stop an arcade gorilla led to a courtroom game demonstration and movie screenings, before judges rejected the claimed trademark infringement. Universal’s earlier public-domain argument adds irony without replacing the actual legal reasoning.
Sharing a gorilla and a surname was not enough to win the argument.
Evidence status
Sources
Original federal district-court judgment
Original language: EnglishOriginal federal appeal judgment
U.S. Court of Appeals — Universal City Studios v. Nintendo · 746 F.2d 112 · 4 October 1984 (Justia)
Original language: English