You are on page 1of 16

!"#$%& () *+!,"(,--# .)/*+!

,"(
01234540415422606502
0
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

GEARBOX SOFTWARE, LLC,

Plaintiff,
CIVIL ACTION NO. 3:14-CV-00710-L
v.

APOGEE SOFTWARE, LTD. d/b/a
3D REALMS ENTERTAINMENT and
INTERCEPTOR ENTERTAINMENT APS,
1URY TRIAL DEMANDED
Defendants.


ANSWER TO PLAINTIFFS COMPLAINT

Defendant, Apogee Software, Ltd. d/b/a 3D Realms Entertainment (3DR), for its
answer to Plaintiffs Complaint, would respectfully show the Court as follows:
I. ANSWER
05 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 1, therefore, the allegations of Paragraph 1 are denied.
25 3DR admits the allegations of Paragraph 2.
15 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 3, therefore, the allegations of Paragraph 3 are denied.
65 3DR admits the allegations of Paragraph 4.
35 3DR admits that it is subject to personal jurisdiction in this district. The
remaining allegations of Paragraph 5 are denied.
75 3DR admits that venue is proper in this district as to 3DR. The remaining
allegations of Paragraph 6 are denied.
Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page l of 8 PagelD l04
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
2
85 3DR admits that an Asset Purchase Agreement was executed on or about
February 2, 2010. The remaining allegations of Paragraph 7 are denied.
95 3DR denies the allegations of Paragraph 8.
:5 3DR denies the allegations of Paragraph 9.
045 3DR denies the allegations of Paragraph 10.
005 3DR denies the allegations of Paragraph 11.
025 3DR denies the allegations of Paragraph 12.
015 3DR admits that an Asset Purchase Agreement was executed on or about
February 2010. The remaining allegations of Paragraph 13 are denied.
065 3DR denies the allegations of Paragraph 14.
035 3DR denies the allegations of Paragraph 15.
075 3DR admits that a lawsuit was filed against Plaintiff for failure to properly
account for and pay royalties. The remaining allegations of Paragraph 16 are denied.
085 3DR is without sufficient information to find a belief as to the truth or falsity of
the allegations of Paragraph 17, therefore, the allegations of Paragraph 17 are denied.
095 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 18, therefore, the allegations of Paragraph 18 are denied.
0:5 3DR admits that it received a first harassing letter from Plaintiffs lawyers dated
February 13, 2014. The remaining allegations of Paragraph 19 are denied.
245 3DR admits that it received a second harassing letter from Plaintiffs lawyers on
Saturday, February 15, 2014. The second harassing letter included a blank statement, which was
prepared by Plaintiffs lawyers, to be signed by the principles of 3DR. The second harassing
letter unconditionally demanded that the statement be signed by Sunday, February 16, 2014, by
Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 2 of 8 PagelD l05
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
1
the close of the holiday weekend. A copy of the second harassing letter is attached to this
Answer as Exhibit A. The remaining allegations of Paragraph 20 are denied.
205 3DR denies the allegations of Paragraph 21.
225 3DR denies the allegations of Paragraph 22.
215 3DR denies the allegations of Paragraph 23.
265 3DR denies the allegations of Paragraph 24.
235 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 25, therefore, the allegations of Paragraph 25 are denied.
275 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 26, therefore, the allegations of Paragraph 26 are denied.
285 3DR incorporates its answers to Paragraphs 1 through 26 by reference.
295 3DR denies the allegations of Paragraph 28.
2:5 3DR denies the allegations of Paragraph 29.
145 3DR denies the allegations of Paragraph 30.
105 3DR denies the allegations of Paragraph 31.
125 3DR incorporates its answers to Paragraphs 1 through 31 by reference.
115 3DR denies the allegations of Paragraph 33.
165 3DR denies the allegations of Paragraph 34.
135 3DR incorporates its answers to Paragraphs 1 through 34 by reference.
175 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 36, therefore, the allegations of Paragraph 36 are denied.
185 3DR denies the allegations of Paragraph 37.
195 3DR denies the allegations of Paragraph 38.
Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 3 of 8 PagelD l06
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
6
1:5 3DR incorporates its answers to Paragraphs 1 through 38 by reference.
645 3DR denies the allegations of Paragraph 40.
605 3DR denies the allegations of Paragraph 41.
625 3DR incorporates its answers to Paragraphs 1 through 41 by reference.
615 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 43, therefore, the allegations of Paragraph 43 are denied.
665 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 44, therefore, the allegations of Paragraph 44 are denied.
635 3DR denies the allegations of Paragraph 45.
675 3DR denies the allegations of Paragraph 46.
685 3DR denies the allegations of Paragraph 47.
695 3DR denies the allegations of Paragraph 48.
6:5 3DR denies the allegations of Paragraph 49.
345 3DR denies the allegations of Paragraph 50.
305 3DR denies the allegations of Paragraph 51.
325 3DR incorporates its answers to Paragraphs 1 through 51 by reference.
315 3DR denies the allegations of Paragraph 53.
365 3DR incorporates its answers to Paragraphs 1 through 53 by reference.
335 3DR admits that an Asset Purchase Agreement was executed on or about
February 2, 2010. The remaining allegations of paragraph 55, if any, are denied.
375 3DR denies the allegations of Paragraph 56.
385 3DR is without sufficient information to form a belief as to the truth or falsity of
the allegations of Paragraph 57, therefore, the allegations of Paragraph 57 are denied.
Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 4 of 8 PagelD l07
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
3
395 3DR denies the allegations of Paragraph 58.
3:5 3DR denies the allegations of Paragraph 59.
745 3DR denies the allegations of Paragraph 60.
705 3DR intends to and hereby denies any allegation of the Complaint not specifically
admitted in this Answer.
II. AFFIRMATIVE DEFENSES
725 Plaintiffs claims are barred, in whole or in part, by the doctrine of laches,
estoppel and/or waiver.
715 Plaintiffs claims are barred, in whole or in part, by written or implied trademark
and/or copyright licenses. The Asset Purchase Agreement provides that 3DR could complete
development of and sell a video game with the tentative title of Duke Nukem Survivor. The
Asset Purchase Agreement also explicitly provides 3DR a worldwide, non-exclusive license
(including the right to sublicense) to use the DUKE NUKEM trademarks in connection with
the marketing, promotion, manufacturing, and distribution of the Duke Nukem Survivor
game. In 2012 and again in 2013, Plaintiff was informed by 3DR of the development of the
Duke Nukem game by 3DR. Plaintiff failed to timely object to the development or sale of the
Duke Nukem game.
765 Plaintiffs claims are barred, in whole or in part, because Plaintiff does not own
the DUKE NUKEM trademark rights. Any assignment of the trademark rights to Plaintiff is
void as an assignment in gross. Therefore, the DUKE NUKEM trademark rights remain the sole
property of 3DR.

Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 5 of 8 PagelD l08
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
7
III. DEMAND FOR JURY TRIAL
735 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, 3DR demands a
jury trial.
IV. PRAYER
WHEREFORE, Defendant, Apogee Software, Ltd. d/b/a 3D Realms Entertainment prays
for relief that:
A. Plaintiffs Complaint be dismissed with prejudice;
B. Judgment be entered that Plaintiff take nothing from 3DR, including that:
i. Plaintiff is not entitled to damages from 3DR, either actual or statutory;
ii. Plaintiff is not entitled to an award of costs or attorneys fees; and,
iii. Plaintiff is not entitled to exemplary, punitive or enhanced damages;
C. Judgment be entered that Plaintiffs request for injunctive relief is denied;
D. Judgment be entered against Plaintiff for costs and reasonable attorneys fees of
3DR, as provided under 15 U.S.C. 1117(a) and 17 U.S.C. 505;
E. Such other and further relief as the Court deems just and proper.









Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 6 of 8 PagelD l09
!"#$%& () *+!,"(,--# .)/*+!,"(
01234540415422606502
8
Dated: March 18, 2014 Respectfully submitted,

s/George R. Schultz
George R. Schultz
Texas State Bar No. 17837500
rschultz@grspc.com
Nicole R. Marsh
Texas State Bar No. 24044653
nmarsh@grspc.com

SCHULTZ & ASSOCIATES, P.C.
5400 LBJ Freeway
Suite 1200
Dallas, Texas 75240
(214) 210-5940 telephone
(214) 210-5941 facsimile

ATTORNEYS FOR DEFENDANT
APOGEE SOFTWARE, LTD.
d/b/a 3D REALMS ENTERTAINMENT
Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 7 of 8 PagelD ll0

.%&(,-,.!(% )- #%&;,.% #)+) *!<%
01234540415422606502
CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2014, the Answer to Plaintiffs Complaint was filed
with the clerk of the court for the U.S. District Court, Northern District of Texas, using the
electronic case filing system of the Court. The electronic case filing system sent a Notice of
Electronic Filing to the following attorneys of record who have consented in writing to accept
this Notice as service of this document by electronic means:

Michael E. Schonberg
Mike.schonberg@tklaw.com
Texas Bar No. 00784927
William M. Katz, Jr.
Willliam.katz@tklaw.com
Texas Bar No. 0791003
Megan Dredla Hoyt
Megan.hoyt@tklaw.com
Texas Bar No. 24050530
Thompson & Knight LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201


s/George R. Schultz
George R. Schultz

Case 3:l4-cv-007l0-L Document 7 Filed 03/l8/l4 Page 8 of 8 PagelD lll




















Exhibit A
Case 3:l4-cv-007l0-L Document 7-l Filed 03/l8/l4 Page l of 5 PagelD ll2
!"#$%&#' ) *'+,"! --%
WLLAM M. KATZ JR.
ATTORNEYS AND COUNSEL ORS
AUST N
DALLAS
DETROT
FORT WORTH
HOUSTON
LOS ANGELES
NEW YORK
SAN FRANCSCO
-----------------------------------------------
ALGERS
LONDON
MONTERREY
PARS
ONE ARTS PLAZA
1722 ROUTH STREET SU TE 1500
DALLAS, TEXAS 75201
214. 969. 1700
FAX 214. 969. 1751
www.tkl aw. com
DRECT DAL: (214) 969-1330
EMAL: William.Katz@tklaw.com

020864 000002 9070466.4
February 15, 2014


Via E-mail

Messrs. Scott Miller & George Broussard
Apogee Software, Ltd d/b/a 3D Realms
4809 Beltline Rd., #111
Mesquite, TX 75150

RE: Breach Notice/IP Infringement

Dear Messrs. Miller & Broussard:

Gearbox has advised me that, in lieu of complying with its lawful requests, you are
improperly soliciting personal gratuities and forgiveness from various parties (including
Gearbox). Because such gestures cannot cure the 3DR breaches, your gestures will not
circumvent Gearboxs legal action(s) in response thereto.

Gearbox has instructed me to inform you that the pending case against you and 3DR is
not something that you can hope to individually resolve through private appeals and emotional
sidebars; Gearbox views its legal case as a formal matter with very dispassionate consequences.
And with evidence against 3DR mounting, Gearboxs case against you gentlemen and 3DR is
clearer than ever. The only thing clearer at this point is Gearboxs determination to publicly file
its claims against you and 3DR next week.

The only proviso is one that Gearbox just authorized me to convey. Reserving all
Gearbox rights and remedies previously stated, the offer is as follows:

Attached is a revised 3DR Declaration from Gearbox, the terms of which are more
favorable and lenient to 3DR in ways you will instantly recognize. The first of you to execute
and return the revised 3DR Declaration to our firm (via a PDF copy emailed to
William.Katz@tklaw.com) will receive these immediate benefits from Gearbox:

he will avoid being personally and individually named in next weeks court pleadings;
and

he will earn an opportunity to promptly sit down with Gearbox to discuss, in good faith,
his relationship with Gearbox and any future business matters.
Case 3:l4-cv-007l0-L Document 7-l Filed 03/l8/l4 Page 2 of 5 PagelD ll3
Messrs. Miller and Broussard
February 15, 2014
Page 2


020864 000002 9070466.4

To be clear: The aforementioned benefits are reserved for the first person to successfully
execute and deliver the 3DR Declaration prior to midnight (CST) tomorrow night.

Please understand that no component of the Gearbox offer is negotiable. The act of even
proposing an alteration to a single term will nullify Gearboxs offer in its entirety for the
individual proposing the alteration. Gearbox has strictly limitedand easedcertain terms for
the purpose of enabling swift decisions by all parties.

It goes without saying that the stated offer represents a personal courtesy being extended
by certain Gearbox owners. To the extent either of you were hoping for such relief, it has now
been offered. If neither of you returns an executed version of the attached 3DR Declaration by
tomorrows deadline, I will inform our client that its courtesy has been rejected and will
thereafter apply the totality of our firms resources and attention to the upcoming litigation. You
can then both expect to receive service of the Gearbox lawsuit.

Very truly yours,

William M. Katz Jr.

Enclosure

cc: Wade Callender, Esq.
J. Holt Foster III, Esq.
Stephen E. Stein, Esq.
Deborah L. Lively, Esq.

Case 3:l4-cv-007l0-L Document 7-l Filed 03/l8/l4 Page 3 of 5 PagelD ll4

Page 1 of 2


Declaration of 3DR

1. My name is Scott Miller George Broussard (indicate as appropriate). I am over the age of
twenty-one, and a 3DR officer otherwise competent to make this declaration. I have personal knowledge
of the facts in this declaration, and each such fact is true and correct. I am executing this Declaration
personally and as an authorized agent of Apogee Software, Ltd d/b/a 3DR (3DR), in accordance with
the Breach Notice/IP Infringement letter from Gearbox Software, LLC (Gearbox) dated February 13,
2014 (Breach Notice).
2. I have read the Breach Notice and I understand the statements therein.
3. As an officer of 3DR, I possess knowledge of the development of all 3DR products and certain
legal agreements, including without limitation the Asset Purchase Agreement (APA), and all related
documents executed between Apogee Software, Ltd. d/b/a 3DR and Gearbox in February 2010
(collectively, the Duke IP Terms).
4. I hereby acknowledge that 3DR assigned over all rights, title and interest to the Duke IP with
very limited exceptions. More specifically: 3DR retained only Gearboxs narrow permission for Apogee,
LLC (Apogee) to complete the few games previously in development by Apogee for certain platforms;
these few, now-outdated games are listed in Exhibit 1 of the 2010 Supplement to the APA
(Supplement).
5. I am aware that Exhibit 2.2 of the APA states that all future development in the Duke IP is a
development right exclusively held by Gearbox. As such, only Gearbox has possessed the right to use the
Duke IP in the development of any and all new Duke Nukem games, ancillary projects and materials
since February 2010. Because such rights belong to Gearbox alone, development efforts such as 3DRs
Duke Nukem: Mass Destruction effort with others was not only unauthorized, but a material
infringement of Gearboxs rights. I apologize to Gearbox for the infringement and breach represented by
my efforts.
6. In accordance with the Breach Notice, I agree to, and shall immediately cause 3DR to:
Case 3:l4-cv-007l0-L Document 7-l Filed 03/l8/l4 Page 4 of 5 PagelD ll5

Page 2 of 2

a. Assist Gearbox in identifying all unauthorized use(s) of all other intellectual property
associated with Gearboxs Duke Nukem brand;
b. take any and all other actions as may be reasonably required to comply with the Breach
Notice and Gearboxs exclusive rights;
c. refrain from any acts that use or violate the Duke IP, which exclusively belongs to Gearbox;
d. immediately provide Gearbox with confirmation of 3DRs compliance with the obligations
identified herein.
7. I acknowledge that 3DRs actions, which were taken at 3DRs behest, constitute a
material breach of the Duke IP Terms that causes irreparable harm to Gearbox and its Duke IP rights. By
willfully and materially breaching the APA and related Duke IP Terms, I agree that Gearbox is entitled to
all legal and equitable remedies against 1) 3DR; and 2) those participants who have failed to provide the
confirmations I have voluntarily provided herein.
With sincere apologies for my actions, I declare under penalty of perjury that the foregoing is true
and correct.
Signed & delivered prior to 11:59 p.m. (CST) on February 16, 2014, in _____________, Texas.

Apogee Software, Ltd d/b/a 3DR S. Miller or G. Broussard, an individual

By:

Name:

Title:
Case 3:l4-cv-007l0-L Document 7-l Filed 03/l8/l4 Page 5 of 5 PagelD ll6
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
Plaintiff
Defendant
v.
Civil Action No.
CERTIFICATE OF INTERESTED PERSONS
(This form also satisfies Fed. R. Civ. P. 7.1)
Pursuant to Fed. R. Civ. P. 7.1 and LR 3.1(c), LR 3.2(e), LR 7.4, LR 81.1(a)(4)(D), and LR 81.2,
provides the following information:
For a nongovernmental corporate party, the name(s) of its parent corporation and any
publicly held corporation that owns 10% or more of its stock (if none, state "None"):
*Please separate names with a comma. Only text visible within box will print.
A complete list of all persons, associations of persons, firms, partnerships, corporations,
guarantors, insurers, affiliates, parent or subsidiary corporations, or other legal entities that are
financially interested in the outcome of the case:
*Please separate names with a comma. Only text visible within box will print.
Case 3:14-cv-00710-L Document 8 Filed 03/18/14 Page 1 of 3 PageID 117
Dallas Division
Gearbox Software, LLC
Apogee Software, Ltd., et al.
3:14-CV-00710-L
Apogee Software, Ltd. d/b/a 3D Realms Entertainment
The general partner of Apogee Software, Ltd. is Action Entertainment, Inc.
Interceptor Entertainment APS
Date:
Signature:
Print Name:
Telephone:
Address:
City, State, Zip:
Bar Number:
Fax:
E-Mail:
NOTE: To electronically file this document, you will find the event in our Case Management (CM/ECF) system, under Civil/Other
Documents/Certificate of Interested Persons
Case 3:14-cv-00710-L Document 8 Filed 03/18/14 Page 2 of 3 PageID 118
March 18, 2014
s/ George R. Schultz
George R. Schultz
214-210-5940
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
17837500
214-210-5941
rschultz@grspc.com
CERTIFICATE OF SERVICE SOLO PAGE
13250.0103.031814.1
CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2014, the Certificate of Interested Persons was filed
with the clerk of the court for the U.S. District Court, Northern District of Texas, using the
electronic case filing system of the Court. The electronic case filing system sent a Notice of
Electronic Filing to the following attorneys of record who have consented in writing to accept
this Notice as service of this document by electronic means:

Michael E. Schonberg
Mike.schonberg@tklaw.com
Texas Bar No. 00784927
William M. Katz, Jr.
Willliam.katz@tklaw.com
Texas Bar No. 0791003
Megan Dredla Hoyt
Megan.hoyt@tklaw.com
Texas Bar No. 24050530
Thompson & Knight LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201


s/George R. Schultz
George R. Schultz

Case 3:14-cv-00710-L Document 8 Filed 03/18/14 Page 3 of 3 PageID 119