Re: [GNU-linux-libre] Usage of NINTENDO, MAME and other trademarks

[Jean Louis]

Hello Jason,

On Fri, Apr 01, 2016 at 12:46:28PM -0700, Jason Self wrote:
> For example I think where, in Guix, the package for Mupen64Plus says that
> it "is a cross-platform plugin-based Nintendo 64 (N64) emulator" would be
> an example of nominative use.
> 
> It would be much more difficult to explain what a program was without being
> able to refer to the name. ("This program emulates a certain device
> manufactured by a certain company...")
> 
> Just because something is a trademark doesn't mean we can never talk of it
> or make reference to it.

In that example: "is a cross-platform plugin-based Nintendo 64 (N64)
emulator" in my opinion, that is very very clear infringement.

The question is: does it harm the market? Nintendo will say "yes, it
does". Because if somebody uses emulator, Nintendo is loosing sales. If
they are loosing sales, somebody is going to pay for that (GuixSD, FSF,
responsible parties).

There is "fair use" of trademarks, and you may read it here:
https://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law%29
https://en.wikipedia.org/wiki/Nominative_use

There could be a solution to totally exclude the trademark, or to use it
in such way to fall into "nominative use", which would require attorney
services to carefuly draft such wordings if at all posible. This second
manner, can be dangerous anyway, because such things are decided in the
court eventually. 

If there is no trademark, there is no danger for free software
distributions.

In particular, Nintendo has hundreds of trademarks in probably less than
200 countries.

NINTENDO 64® is also registered trademark for: electronic game programs;
electronic game software; [electronic game cartridges; video game
cartridges;] video game programs; and video game software, registered in
2000 in United States, and multiple other countries for
sure. Registration number: 2372472 and belongs to Nintendo of America
Inc. CORPORATION WASHINGTON.

If one says, here is Nintendo 64 emulator, that clearly infringes their
trademark.

Of course, one can speak of trademarked items. But in that case it is an
article and not "good or service" in question, like on Wikipedia:
https://en.wikipedia.org/wiki/Nintendo_64

The problem is with the delivery of "good and services", such as
software, emulator, and in the same time clearly using words: "Nintendo
64 Emulator". It shall be solved by attorneys, not by laymen.

Jean Louis