Back when... Universal sued Donkey Kong, but Kirby fought back

In a time when Nintendo's home consoles didn't yet exist and arcade games was all the rage. Nintendo came out with their first arcade game Laser Clay Shooting System in 1973

In 1980 Namco showed the world how infuencal a video game could be, with the mega success Pac-Man. Nintendo started their work towards something that could rival Namco's success and help them break into the American gaming market

The assignment was handed to someone who had never produced a video game before, Shigeru Miyamoto. You might recognize the name Miyamoto today, but back then it was an unknown name

The game took inspiration from other works, including Popeye, Beauty and the Beast and King Kong. With help from Gunpei Yokoi, Donkey Kong was created for arcades and released in 1981. The game featured cutscenes and multiple levels, which was new grounds within video games at the time

Donkey Kong went onto being the highest-grossing arcade game of 1981 and 1982. It was also the game Nintendo needed, to enter the American gaming market

Over at Universal

President of Universal City Studios learned about Donkey Kong in April of 1982 and put their vice president of legislative matters, Robert Hadl to investigate. Who found out Nintendo's Donkey was an infringement of their ownership to King Kong character and storyline

Royalties claim

Coleco got requested to pay 3% royalty on their home port of Donkey Kong and stop sales of the game. Coleco complied, under the agreement Universal wouldn't sue them

Tiger Electronics was creating a handheld version of Donkey Kong, with licence from Nintendo and got the same request. Tiger didn't believe Universal had the rights to King Kong and challenge Universal claims

Nintendo was first planning to settle, but later decided to fight Universals claim. On may 6th Nintendo of America president Minoru Arakawa and their lawyer Howard Lincoln, had a meeting with Universal vice president. Where Universal says Donkey Kong was infriding on their King Kong copyright. While Nintendo's lawyer said they'd found multiple copyright infringement Universal haven't laid claim on and Universal trademarks are less than 10 years old. By the end of the meeting, Universal agreed to send Nintendo chain of title. To show who have own King Kong title in the past and prove that Universal is the current owner of the title

After a few weeks, as Universal failed to provide the chain of title and instead just sent further royalty claims. Nintendo called a meeting with Universal on the 21st of May. Universal agreed, thinking Nintendo was ready to give in

Cease and decist

1) Stop using Donkey Kong characters
2) Obtain a license from Universal
3) Be sued

Coleco already had already made an license agreement with Universal, six more Donkey Kong licensee followed suite. While Milton Bradley refused to do so

Nintendo hired John Kirby to represent them in court. Kirby had won other big cases for PepsiCo., General Foods and Warner-Lambert, which was why he was choosen to represent Nintendo

Lawsuit

Kirby alleged that Universal had no rights to the King Kong branding, as Universal had sued RKO Pictures in 1975 and therin proven that King Kong was in the open domain

Judge Sweet ruled that Universal did not have any trademark in King Kong. Even if Universal did have trademark in King Kong, Judge Sweet found it unlikely for anyone to mistake King Kong for Donkey Kong

Appeal

Universal performed phone survey to 150 managers and owners of arcades, pizza restaurants and bowling alleys that had Nintendo's Donkey Kong arkade and asked them two questions

18% believed Donkey Kong was made under the approval or authority of the ones who make King Kong movies. While on their second question, no one named Universal

Universal used this to argue that there was confusion between the two names. They also provided six examples from printed media, to there being confusion between the names

The court upheld their ruling, stating "The two properties have nothing in common but a gorilla, a captive woman, a male rescuer, and a building scenario." Court further elaborated "The 'Kong' and 'King Kong' names are widely used by the general public and are associated with apes and other objects of enormous proportions."

Nintendo's countersuite

Nintendo was given the option to accept statutory damages or take Universals profit from licensees of their Donkey Kong game. Nintendo opted for the later and received US $56,689.41. Universal also had to pay Nintendo for damages and legal fees, on top

Kirby is born

In honor of John Kirby's service, the titular character of Kirby's Dream Land was named after Kirby

Nintendo collaborations with Universal