Professional Documents
Culture Documents
CIVIL ACTION
NO. 3:14-CV-00710-L
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
INTERROGATORY NO. 2:
Identify and describe in detail each character, copyrightable element
and trademark in the Duke Nukem Universe and Duke Nukem Game Property that were developed preclosing as described in Exhibit 2.2 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 2 of 32
INTERROGATORY NO. 3:
Identify and describe in detail each character, copyrightable element
and trademark in the games identified as Duke Nukem 1, Duke Nukem 2, Duke Nukem 3D, Duke
Nukem 3D Live, Duke Nukem Critical Mass, and Duke Nukem Survivor, as identified in Exhibit 1 of the
APA-Supplement.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked nuclear symbol;
the character Duke Nukem and all video games that existed at the time of the APA and any works in
development at the time of the APA, including Duke Nukem Forever.
Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).
INTERROGATORY NO. 4:
Identify all individuals that participated in the negotiations, drafting
and execution of the APA and the APA-Supplement and provide a summary of the knowledge that each
such individual possesses about such participation.
ANSWER:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 3 of 32
Heptig, J. Pat
Heptig Law Group, Ltd.
15050 E. Beltwood Pkwy.
Addison, Texas 75001
(214) 451-2514
Randy Pitchford
Brian Martel
Gearbox
c/o Gearbox Counsel
Paul Putnam
5909 London Court
Dallas, Tx 75252
214-449-0566
INTERROGATORY NO. 5:
Identify and describe in detail each element and aspect incorporated
and/or embodied in or otherwise relating to the series of Duke Nukem games created up to the closing
date, as identified in Exhibit 2.1, paragraph 1 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trademarks and trade names related to the Duke Nukem Universe
including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and 2.7(a)(ii)(C)(1), the
assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further answer, all intellectual
property in the Duke Nukem Universe was transferred and is too extensive to list here. Also, this
information is equally available to Apogee as Apogee is the Seller that actually created the Duke Nukem
materials that existed prior to the Closing Date and would also have knowledge about all aspects of the
Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under the APA. In
addition, by way of specific example only, Gearbox identifies the trademarked Nuclear symbol; the
character Duke Nukem and all video games that existed at the time of the APA and any works in
development at the time of the APA, including Duke Nukem Forever.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 4 of 32
Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).
INTERROGATORY NO. 6:
Identify and describe in detail all game characters, game design
documents, story lines, story themes, plots, game scripts/dialog, character names and likenesses, and all
trademarks and trade names directly related to the Duke Nukem Universe, as identified in Exhibit 2.1
paragraph 2 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).
INTERROGATORY NO. 7:
Identify and describe in detail all trademarks, service marks, and
trade names used in connection with or associated with the Duke Nukem Universe, as identified in Exhibit
2.1, paragraph 3 of the APA.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 5 of 32
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate evidence of what assets transferred from 3DR to Gearbox as a result of that
transaction. The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional
manes, trade names, registered and unregistered trademarks, service marks, and applications, all
registered and unregistered copyrights in both published and unpublished works and all know-how, trade
secrets, confidential and proprietary information, technical information, and all rights in internet websites
and domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items
identified in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or
otherwise related to the series of Duke Nukem games created by or for 3DR. The elements and aspects
include all Duke Nukem game characters, game design documents, story lines, story themes, plots, game
script/dialogue, character names and likenesses, and all trade marks and trade names related to the Duke
Nukem Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
Stating further, Gearbox also identifies the Duke Nukem mark.
INTERROGATORY NO. 8:
Identify and describe your definition of the term non-AAA Platform
versions of the excluded games listed Exhibit 1, as that term is utilized in paragraph 5 of the APA
Supplement.
ANSWER:
Non-AAA platform versions of the excluded games listed in Exhibit 1 of the APA means
game versions not designed or developed for use in conjunction with Microsoft X-Box, Sony Play Station,
Nintendo, Wii, PC or Mac as well as certain HTML or other on-line versions.
INTERROGATORY NO. 9:
Identify all facts that you believe support your contention that
Defendants, or either of them, have infringed the Allegedly Infringed Marks. State the name, address and
phone number of each person with knowledge of such facts, including the facts on which they have
knowledge and identify each document which you allege support such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 6 of 32
that was transferred to Gearbox under the APA, including the trademarked nuclear symbol. Further,
discovery in this matter has just begun and Gearbox has requested the depositions of 3DR and Interceptor
to better understand the extent to which these defendants have violated the terms of the APA and the
intellectual property rights Gearbox acquired under the APA. Gearbox will supplement this answer as
Defendants provide deposition testimony or other discovery responses identifying additional breaches or
infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Heptig, J. Pat
Heptig Law Group, Ltd.
15050 E. Beltwood Pkwy.
Addison, Texas 75001
(214) 451-2514
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 7 of 32
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.
nuclear symbol. Further, discovery in this matter has just begun and Gearbox has requested the
depositions of 3DR and Interceptor to better understand the extent to which these defendants have violated
the terms of the APA and the intellectual property rights Gearbox acquired under the APA. Gearbox will
supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional breaches or infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 9 of 32
By way only of example, below is a depiction of the Trademarked Nuclear Symbol (No. 2,435,065 or the
065 Mark) as it appears in some works of which Plaintiff holds valid registered Copyrights, including: PA1782-911, PA1-812-111, PA1-814-677:
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 11 of 32
See also the below excerpts from the actual 065 Registration:
Generated on: This page was generated TSDR on 2615-61-15 12:50:46 EST
Mark:
Register Principal
Mark Type: Trademark
Status: The registration has been renewed.
Status Date: Aug. 16. 2611
Publication Date: Dec. 113, 2666
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OF INTERROGATORIES Page 12 of 32
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OF INTERROGATORIES Page 13 of 32
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OF INTERROGATORIES Page 14 of 32
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OF INTERROGATORIES Page 15 of 32
By way only of example, below is the character Duke Nukem as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111, PA1-814-677:
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 16 of 32
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 17 of 32
'Word up. I'm general graves. The shit has hit the fan BIG TIME.
Herds the key -Jo the White House, now rendezvous with the
Presider; ASAP!"
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 18 of 32
By way only of example, below is the character General Graves as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111, PA1-814-677:
Ti
a-
..dr
fl
o
11 Ili
General Graves: Duke, I know this is hard for you, but play it cool for now
General Graves: Excellent work taking out the mothership and getting down here,
Duke. I'm only sorry our EDF soldiers didn't make it, but I'll bear that burden and inform
their families personally.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 19 of 32
By way only of example, below is the character Doctor Proton, as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-922-835, PA1-782-911, PA1-812-111, PA1-814677:
I
ii
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 20 of 32
By way only of example, below is the trademarked name Duke Nukem (No. 2,578,916) as it appears in
some works of which Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111,
PA1-814-677:
Further, taken as a whole, Defendants use of protected and protectable marks and expressive
audiovisual and/or artistic elements of Gearboxs Duke IP (specifically including but not limited to those
described above) in the Mass Destruction title has resulted in a product likely to confuse consumers as to
the source of the product.
Additionally, Defendants use of protected and protectable marks and expressive audiovisual
and/or artistic elements of Gearboxs Duke IP (specifically including but not limited to those described
above) in Mass Destruction has resulted in a product substantially similar to the Duke IP owned by
Gearbox that is akin to literal copying. In Defendants infringing work, the character Duke Nukeman
overly masculine and wisecracking protagonistfights off an invading army of evil aliens in an attempt to
save the world from peril or destruction at the hands of said aliens and the villainous Doctor Proton, a wellknown character from the Duke Nukem Universe who has appeared in the videogames Duke Nukem and
Duke Nukem Forever. When taken together and in the context of the Duke Nukem Universe and IP, these
copied elements clearly demonstrate infringement. Indeed, in each prior iteration of Duke Nukem games
specifically including but not limited to Duke Nukem, Duke Nukem II, Duke Nukem 3D, and Duke Nukem
Foreverthe character Duke Nukem has been charged with fighting off an evil alien army and saving the
world from certain peril or destruction.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 21 of 32
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
INTERROGATORY NO. 17:
Identify all facts which support your allegation that Interceptor,
without permission or consent of Gearbox, has used and continues to use material covered by the Duke
Nukem Copyrights in the development, creation, sale, promotion, and distribution of its videogame entitled,
Duke Nukem: Mass Destruction, as alleged in paragraph 45 of your Complaint. State the name, address
and phone number of each person with knowledge of such facts and identify each document which
evidences such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
nuclear symbol. Further, discovery in this matter has just begun and Gearbox has requested the
depositions of 3DR and Interceptor to better understand the extent to which these defendants have violated
the terms of the APA and the intellectual property rights Gearbox acquired under the APA. Gearbox will
supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional breaches or infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 24 of 32
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 25 of 32
ANSWER: Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, based on the
information available to Gearbox at this time, it appears that Defendant Interceptor was responsible for the
Duke Nukem: Mass Destruction teaser website, Alloutofgum.com, which made specific use of the Duke
Nukem Universe intellectual property that was transferred to Gearbox under the APA, including copyrighted
characters. In addition, Interceptors teaser website touted the release of a new game, Duke Nukem: Mass
Destruction. At the time of the APA, there was no game titled Duke Nukem: Mass Destruction. Further,
discovery in this matter has just begun and Gearbox has requested the depositions of 3DR and Interceptor
to better understand the extent to which these defendants have infringed Gearboxs copyrights. Gearbox
will supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional infringement.
Persons with knowledge of Defendants actions include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 28 of 32
ANSWER:
Gearbox objects to this request as overly broad and unduly burdensome and not
reasonably calculated to lead to the discovery of admissible evidence. Furthermore, with respect to the
specific development process of certain works that was undertaken and completed prior to the execution of
the APA and the transfer of the Duke IP to Gearbox in 2010, such information is at least equally, if not
better known to 3DR.
INTERROGATORY NO. 21:
Describe in detail the factual basis for Plaintiffs assertion that the
alleged copyright infringement by Defendant was willful. In your answer, state the name, address and
phone number of each person with knowledge of the facts set forth in your response and identify each
document which evidences the facts set forth in your response.
ANSWER:
At this time Gearbox relies upon the Declarations of Scott Miller and George Broussard
attached to the Complaint as Exhibit D as well as the fact that Mr. Schreiber knew that Gearbox owned the
rights to the Duke Nukem games and Intellectual Property before allowing Interceptor to publish the teaser
website AlloutofGum.com in 2014.
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 30 of 32
Respectfully submitted,
By:
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 31 of 32
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document has been served via electronic mail, upon
all counsel of record, as identified below, on April 10, 2015:
George R. Schultz
rschultz@grspc.com
Nicole R. Marsh
nmarsh@grspc.com
Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 32 of 32