Next Generation reports that Darin Scott and Edward Polgardy of Cinemagraphix Entertainment are suing Apogee (3D Realms) for copyright infringement, saying they came up with the idea and the title for the upcoming Earth No More. According to the report, 3D Realms previously filed a legal action of their own to forestall this:

The plaintiffs claim to have shopped around the idea for a game called Earth No More back in early 2005 to several game companies, including 3D Realms. In June 2007, 3D Realms announced plans to release a game dubbed Earth No More sometime in 2009.

The suit lists defendants as Apogee Software (3D Realms’ other moniker), Earth No More development partner Recoil Games of Helsinki, Finland and Action Entertainment.

Scott and Polgardy’s complaint accuses the defendants of copyright infringement, unlawful competition, misappropriation, unfair business practices, unjust enrichment, conspiracy and other claims.

The plaintiffs are seeking damages under the US Copyright Act, which can include actual damages such as a disgorgement of profits from the game, statutory damages of up to $150,000 plus attorneys’ fees and an injunction against the 3D Realms’ distribution of the property.

The complaint calls 3D Realms’ Earth No More “virtually identical in substance” to the plaintiffs’ property.

Separate court documents filed in October 2007 reveal that 3D Realms, under the name Apogee Software, filed a preemptive request for declaratory judgment against Scott and Polgardy, which asked a judge to rule that 3D Realms’ Earth No More did not infringe on any property.

In that earlier suit, 3D Realms claimed that Earth No More, which is slated for PC, Xbox 360 and PS3, developed the game “without access to or use of any material created by” Scott and Polgardy.